Truthfulness in Political Advertising: It always happens around campaign season. A candidate runs an ad criticizing the opponent. The opponent’s campaign lawyer issues a letter to the station claiming that the ad is blatantly false, or libelous, and demanding that the station discontinue the ad or face legal action from the campaign committee. Frequently attorneys for candidate will threaten to sue the broadcaster if they continue airing a commercial critical of their candidate, claiming that the ad contains material that is “false, misleading and defamatory.”
What should the station do? Pull the spot? Make the candidate prove the allegation or change the copy?
Most political broadcast rules are complex, subject to interpretation, exceptions and qualifications. But if there is a rule in political broadcasting which is nearly absolute it is this: a use cannot be censored in any way. In the presence of a “use,” the broadcaster is prohibited from censoring the advertisement. Moreover, candidates for federal elective office are entitled to access the station even when the licensee may have decided not to cover the election.
For example, several elections ago, a claim was made that a spot depicting then Senator Paul Wellstone in a positive light was nevertheless a copyright violation because it contained a segment of a CNN news report (depicting Senator Wellstone), and had to be pulled by the station or face copyright infringement liability. While the broadcast may have been defended under the doctrine of “fair use,” the important point was that it contained an identifiable picture of Senator Wellstone. Even though the clip was originally intended to be an unflattering depiction of the Senator, because it was aired in an advertisement intended to be supportive of him, it constituted a positive depiction which would be a “use” under Section 315 of the Communications Act.
A “use” is any positive use of a candidate’s voice or picture in a context not otherwise exempt under Section 315 of the Communications Act. Thus, any program or commercial which identifies the candidate by voice or picture in a positive way and is not a bona fide newscast, bona fide news interview, bona fide news documentary or on-the-spot coverage of a bona fide news event, cannot be censored by the broadcaster. As a result, the broadcaster is provided immunity from liability for its content. Broadcasters who air political advertisements pursuant to Section 315, are immune from liability with respect to their content. Farmers Educational and Co-Op. Union v. WDAY, Inc., 360 US 525, 79 S.Ct. 1302 (1959)
Accordingly, a broadcast station running either of these ads would be prohibited from censoring it in any way other than to assure that it has the proper sponsorship identification.
Most of the FCC cases dealing with immunity under Section 315 concern claims of libel and slander. In 1992, there was a proliferation of television advertisements by candidates for federal office depicting abortions and aborted fetuses in graphic terms. These candidates invoked the “reasonable access” provision of Section 312(a)(7) of the Communications Act to demand that the spots be aired. The licensees contended the advertisements were obscene or indecent, placing them in the awkward position of either violating the law against indecent and obscene broadcasts or the law requiring reasonable access for federal candidates. A federal district court judge in Atlanta ruled that stations could restrict a federal candidate’s graphic abortion advertisement to the hours of midnight to 6 A.M., when children were less likely to be in the audience and the FCC ruled that a licensee who made reasonable, good faith judgment that a spot was indecent could restrict it to that “safe harbor” period. Subsequently, however, the Court of Appeals for District of Columbia Circuit struck down this application of the Commission’s “safe harbor” for indecent programming. In October 1992 the Commission issued a Public Notice seeking comments, but has never released any decision. In this primary election cycle, similar issues were presented by a purported candidate named Randall Terry who was seeking to place ads in the Super Bowl broadcast. However, the Commission ruled on the matter based on the unique character of the Super Bowl. Thus, the ability of licensees even to channel political advertising they believe to be indecent to dayparts when children are not likely to be in the audience remains unlikely. The Commission has even held that threats against the station do not warrant an exemption from the no-censorship provision.
Procedural censorship, such as requiring a tape or script in advance (to screen for content) or attempting to limit the topics to be discussed, is also forbidden. The broadcaster may request, but cannot compel, an advance tape or script, but only to check its qualification as a use, to verify that it contains proper sponsorship identification, and to measure its length. Similarly, if a candidate wishes to appear live, the licensee may not inquire as to the proposed content beyond what is necessary to provide required facilities.
A licensee can add content-neutral audio and/or visual disclaimer tags to political spots, provided it does not discriminate among candidates. An acceptable disclaimer might identify the spot as a paid political advertisement or state that the views expressed do not represent those of the station. To avoid the implication of discrimination, such a tag must be added to all advertising broadcast on behalf of every candidate for the same office. A licensee may not add a disclaimer that in any way might be construed as an editorial comment.
What’s behind this policy? The policy was clearly explained by the Supreme Court in the WDAY case. The Court recognized that permitting a broadcasting station to censor allegedly libelous remarks would undermine the basic purpose for which 315 was passed – full and unrestricted discussion of political issues by legally qualified candidates. Here’s how Justice Black explained it for the Court.
Section 315 dates back to the Radio Act of 1927, where Congress first provided a comprehensive federal plan for regulating the new and expanding art of radio broadcasting. Recognizing radio’s potential importance as a medium of communication of political ideas, Congress sought to foster its broadest possible utilization by encouraging broadcasting stations to make their facilities available to candidates for office without discrimination, and by insuring that these candidates when broadcasting were not to be hampered by censorship of the issues they could discuss. Thus, expressly applying this country’s tradition of free expression to the field of radio broadcasting, Congress has from the first emphatically forbidden the Commission to exercise any power of censorship over radio communication. It is in line with this same tradition that the individual licensee has consistently been denied “power of censorship” in the vital area of political broadcasts.
Moreover, a broadcasting station would be placed in a nearly impossible position if required to make decisions whether material in a political ad is libelous. Whether a statement is defamatory is rarely clear, and whether it is actionably libelous is an even more complex question, involving consideration of various legal defenses such as “truth” and the privilege of fair comment. Such issues have always troubled courts. Quite possibly, if a station were held responsible for the broadcast of libelous material, all remarks — even those faintly objectionable — would be excluded out of an excess of caution. If any censorship were permissible, a station could intentionally inhibit a candidate’s legitimate presentation under the guise of lawful censorship of libelous matter. Because of the time limitation inherent in a political campaign, erroneous decisions by a station could not be corrected by the courts promptly enough to permit the candidate to bring improperly excluded matter before the public. Allowing censorship would almost inevitably force a candidate to avoid controversial issues during political debates over radio and television, and hence restrict the coverage of consideration relevant to intelligent political decision. We cannot believe, and we certainly are unwilling to assume, that Congress intended any such result. See WDAY at p. 530 http://supreme.justia.com/us/360/525/case.html
Short answer, if a broadcaster receives a letter demanding that it pull a candidate spot that contains a “use” and alleging defamation, tell the sender to learn the law.
Intelligence Brief – Election 2012: Part I
What is Reasonable Access?
by Gregg Skall, Womble, Carlyle, Sandridge & Rice
While broadcasters are usually happy for the additional revenue opportunities presented by political advertising, there are reasons for not wanting to carry some spots. Sometimes the ad may be so offensive, that the broadcaster doesn’t want to carry it just as a matter of community relations. So, sooner or later, the question always comes in, “Do I have to take that ad, carry that candidate, or cover that race?” More…
Intelligence Brief – Election 2012: Part II
Equal Opportunities 101: What Triggers Equal Time
By Gregg Skall, Womble Carlyle Sandridge & Rice, LLP
https://rbr.com/?p=154752
The general election campaigns are underway and very close to Election Day. The claims and counterclaims, attacks and retorts are getting hot and heavy. Every candidate appearance on a broadcast station is likely to engender a demand for equal time. So, it’s a ripe time to ask, what are the real rules of equal time and when does a station have to honor the demand?
The Intersection of Broadcasting and Politics
As a sidebar, RBR-TVBR has compiled two reports containing critical information about the political leanings of 16 radio program categories and 18 television program categories, along with the 18+ average. You’ll know the best programs to use to reach Republicans, Democrats, Independents, and even Libertarians – as well as how likely each group is to actually show up and vote. This information will help you sell your station if you’re a broadcaster, or plan your buy if you’re going to run political advertising.
Check them out:
Vital Statistics
The Politics of the Radio Audience
Vital Statistics
The Politics of the Television Audience
