David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

With the verdict in the first criminal case against former President (and now candidate) Trump having been released, we can envision a whole raft of attack ads likely to be airing before the November elections.  The verdict is likely to also increase political divisions within the country, and potentially fuel many other nasty attack ads to be aired in political races from the top of the ballot to the local races that appear toward its end.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our recent articles here and here about other potential FCC and state law liability arising from such ads).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups.

As we have written before, broadcasters (and local cable companies) are forbidden from editing the message of a candidate or rejecting that ad based on what it says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered.

Some take these protections to mean that broadcasters have no fear of liability for any political ad.  As I explained in an interview two years ago with a Detroit television station, that is not true – broadcasters do theoretically have potential liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad is false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions).  In 2020, President Trump’s campaign brought a lawsuit, that was ultimately dismissed, against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit).  In the 2022 election cycle, there was a lawsuit by Utah Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here).  Even Roy Moore, the defeated Alabama Senate candidate from several years ago, was allowed by courts to pursue a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).

While these legal actions are not common, they do occur, and stations must take seriously any allegation that a political ad that they are running is false.  The Communications Act’s “no censorship rule” applies only to candidate ads.  Stations are free to reject an ad from a non-candidate group based on concerns about its content.  If an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station.  Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “actual malice,” e.g., where they either knew the ad was false or had notice that the ads were false, yet they continued to distribute the material anyway with reckless disregard for its false nature.  Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked telling the station that the ad is false), the station needs to take steps to investigate the truth of the ad.  (Note that there have been statements from some Supreme Court justices that suggest that this standard that arose in a case, NY Times v. Sullivan, should be changed to make it easier for a public figure to sue – see our article here – watch developments in this area).

If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station.  Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable.   There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g., “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases”) are less likely to be actionable than are claims about the character, integrity, and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).

The FCC itself is not a fact checker of claims made in political ads.  Many times, the letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest.  Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads.  But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency in assessing the truth or falsity of any political ad is so fraught with First Amendment issues.  Generally, our First Amendment does not allow a government agency to decide what is true in political ads and what is not.  Thus, these questions are left to private actions for defamation.

While defamation actions against broadcasters for not pulling an attack ad have not been common in the past, we are seeing more claims threatening such actions in recent election cycles, and more of these claims seem to be making that threat in a serious way.  We have also seen former President Trump bringing lawsuits against many media entities which he claims falsely characterize his background, including about some characterizations of his past legal issues.  Even if there is no ultimate liability found for defamation, the time and expense involved in any such litigation can be great.  Stations need to carefully assess any demand to pull an attack ad, and to discuss the ad with their attorney when such a cease-and-desist letter is received.  While many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election rather than to advance real legal claims, as recent lawsuits make clear, there are occasions when the ads will in fact result in legal actions.  Stations need to carefully review all such demand letters to assess which have merit – and they need to do so quickly in the heat of an election season. Keep your attorney on speed dial, as legal advice is imperative as sometimes these are not easy calls to make.  But as the consequences can be great, stations need to act with care.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.