Political Ad Dos and Don’ts

The following is an excerpt from “Political Advertising 101: A Refresher Course for Very Busy People” by Wiley partner John M. Burgett.

Stations must sell time to federal candidates throughout their campaign and cannot set any predetermined limits on the spot inventory made available to federal candidates. The only exception is that stations can exclude federal candidate spots from news programs.

Stations cannot censor or edit a candidate’s ad, except to provide the required sponsorship identification information (discussed above).  

Unless the spot is obscene or otherwise violates a felony statute or another Federal Communications Commission rule, a station must broadcast a candidate’s ad uncensored — no matter how offensive, distasteful or defamatory the ad may be. Because stations cannot censor candidate ads, broadcasters are immune from civil liability for the content of such ads.  

Keep in mind, however, that the FCC’s rules only apply to “legally qualified candidates” who have fulfilled all of the requirements to run for a particular office. Whether a candidate is legally qualified is usually pretty obvious; however, if you’re not sure, it’s OK to ask for proof. It is up to the candidate, not the station, to demonstrate that he or she meets the candidate requirements under applicable federal, state or local law.

John M. Burgett

Viewpoint author John M. Burgett. (Image credit: Wiley)

Third-Party Risks

On the other hand, the “no censorship” rule (and, hence, the station’s shield against potential liability) does not apply to third-party ads, so stations may refuse to air such ads or demand edits if they’re uncomfortable with the ad’s content.

The “no censorship” rule and a station’s immunity from civil liability do not extend to third-party ads. Accordingly, before airing third-party ads, station management should be sure that it is comfortable with the content (and it can demand that changes be made to the content as a condition to airing the spot), since the station is not immune from defamation suits or copyright infringement claims arising out of the content of such ads.

A situation that occurs with increasing frequency — and intensity — as Election Day nears is this: A station runs a third-party ad that attacks a candidate, and then the candidate tells the station that the ad is a pack of lies and threatens to sue the station if it doesn’t stop running the ad. So what is a station to do? First, if the station doesn’t already have it, you should immediately request that the sponsor of the spot provide you with documentation of its claims.  Second, we strongly recommend contacting your attorneys to assess the risk of continuing to the run the ad while you investigate the matter and also to help you determine if the documentation provided is sufficient to support the claims made in the ad.

Keeping in mind that a broadcaster is always free to decline running a third-party ad if it is uncomfortable with it, we note that most political ads — while they may be replete with nasty political hardball — generally do not rise to the level of defamation. More often than not, the alleged defamatory content proves essentially to be a matter of interpretation, rather than an outright falsehood. Moreover, although the target of an attack ad often will argue that the station is responsible for the truth or falsity of all material aired on the station — which is technically true — the FCC has been disinclined to saddle stations with the burden of examining and verifying the merits of every political claim.  However, when a third-party ad veers from political issues into attacks on a candidate’s personal character or integrity — e.g., accuses him or her of having an affair, committing a crime, etc. — stations should be extra cautious.

We strongly recommend that all station staff handling political buys and/or maintaining the [FCC] political file brush up on the key rules governing political broadcasting. 

Wiley partner John M. Burgett represents broadcasters, including TV and radio group owners, before the FCC on a host of matters including political advertising.

John M. Burgett, Wiley