Broadcaster Liability For Non -“Use” Attack Ads By Gregg P. Skall

The 2022 Mid-Term political season is well underway and is already proving to be extremely contentious. Broadcasters are being bombarded with political ads from candidates and non-candidates alike.  Many are highly partisan, advocate for legally qualified candidates for public office, and not infrequently highly negative.  While broadcasters have protections from liability for the content of candidate ads, the same is not necessarily true for non-candidate issue ads.  As a result, non-candidate issue advertisements can raise tricky questions regarding liability for false, misleading, or hostile statements for broadcasters that air the advertisements.  As explained below, broadcasters should adopt some best practices to ensure that they are protected in these circumstances.

It is well established that broadcasters are legally prohibited from censoring or editing the content of a broadcast message when it is presented in the context of a “use” by a legally qualified candidate for public office.  Consistent with that principle, the U.S. Supreme Court has held broadcasters immune from liability for the content of such a message.  However, this is not the case with messages from other speakers.  While it used to be that a majority of political messaging was from candidates, in recent years, and as a result of the Supreme Court’s decision in Citizens United, broadcasters have seen a tremendous increase in the number of non-candidate advertisers.

In Citizens United, the Supreme Court opened the door for advertising in the political process by corporations, unions and campaign committees.  While these ads used to appear primarily in the sixty-day period prior to the general election; now however, they appear to have become the predominant type of political ad throughout the campaign season.  Due to the ever-increasing number of these advertisements, there has also been increased focus on the issue of liability for the content of the political advertisement.

Electioneering messages of corporations, special interest groups, unions or any speaker, other than a candidate making a “use” of the station, can expose the licensee to liability.  These non-candidate messages create a breeding ground for threats of legal action intended to intimidate a station into ceasing further broadcast of the message.  The threats can be claims of defamation, inaccuracies, violation of individual property rights such as copyright, and a general failure to exercise the broadcaster’s public interest duty, often implying a challenge against its license at renewal.

These threats can appear in a number of different forms and circumstances.  For example, the American Federation of State, County & Municipal Employees (AFSCME) once ran an ad that claimed a Congressman and U.S. Senate candidate voted to raise his own pay five times while in Congress.  A law firm representing the campaign sent a cease-and-desist letter to broadcasters that aired AFSCME’s ad demanding that they stop running the spot because, according to the campaign, the Congressman had never voted to raise his own pay.  The campaign argued that the station was obligated to stop airing the advertisement because it was maliciously false and misleading, and potentially defamatory of the character of a United States Congressman.  In a current situation, an advertisement by an opposing political party claimed that a U.S. Senator running for re-election had become the life of the party life in Washington D.C. and was buying a super expensive home in D.C., where he intended to stay permanently. His campaign lawyer claimed the ad was factually incorrect and defamatory and accordingly demanded that broadcasters withdraw the ad. These situations are cause for thoughtful action and response by the broadcaster.

Though the uptick in the number of non-candidate ads is new, the problem is not, and the FCC has addressed the topic, either directly or tangentially, several times over the years, with an evolving response.  On several occasions dating back to at least the 1960 Program Policy Statement, the Commission has emphasized that licensees have an obligation to avoid the presentation of deceptive advertising on radio and television.  Initially the Commission stated that every broadcast licensee had the responsibility to take all reasonable measures to eliminate any false, misleading, or deceptive matter.

Though the Commission had adopted its general policy against false, misleading, or deceptive advertising, eleven years later the Commission declined to adopt specific rules to eliminate deceptive advertising.  In a 1971 ruling that resolved a petition of “TUBE” (Termination of Unfair Broadcasting Excesses) and a companion case against CBS and Washington radio station WTOP,[1]  the Commission stated its preference for deferring to the Federal Trade Commission on matters of advertising copy, while reserving the right to act in a clear, flagrant case.  The FCC noted that when an advertisement is the subject of an FTC complaint, the licensee should acquaint itself with the charges and the advertiser’s response and then make a responsible determination as to whether to continue to carry the advertisements.  Though this implies that broadcasters might have a duty to make at least a modest investigation of the charges against an advertisement, the Commission also said that it would not impose on broadcasters the duty to conduct their own tests.  Thus, instead of adopting strict rules, the Commission determined it will rely upon the licensee’s obligation to use discretion and judgment in evaluating advertising offered for broadcast.

Soon after its TUBE decision, the Commission again had occasion to set the standard for broadcaster responsibility for truth or falsity in the context of a political matter, and again elected to rely on a licensee’s exercise of discretion and good judgment.  In Complaint by Alan S. Burstein,[2] the Commission said that in the absence of a candidate “use”:

 . . . each licensee may exercise its own judgment as how best to serve the public interest by presenting contrasting views, and what particular material is to be presented. Intervention by the Commission regarding specific material being broadcast for or against a proposition, even to the limited degree you urge, might create the impression that the Commission is advocating one viewpoint or attempting to judge the truth or falsity of material being broadcast on either side of a currently controversial issue – a position which would be inappropriate for a governmental licensing agency.  . . .  The Commission will not attempt to judge whether statements broadcast on political or other controversial public issues are true or false or whether a licensee was justified in either broadcasting or rejecting them. To do so would be to attempt to place the Commission itself, the government licensing agency, in the role of national arbiter of the “truth.” Although we would be most concerned if substantial evidence were presented that a licensee had acted in bad faith or deliberately discriminated against a political candidate, we have no such evidence before us here.

In 1986, the Commission pounded in the final nail.  In considering policies regarding broadcast licensee character qualifications, the Commission specifically took on the question of deceptive advertising and ruled that a broadcaster would jeopardize its qualification to remain a licensee only if it were to engage in a “knowing presentation” of falsity.  The Commission defined this as an active participation in perpetrating a deception upon the audience, either by its actual involvement in the knowing creation of a deliberately fraudulent ad or by awareness of Federal Trade Commission (“FTC”) or other final governmental action involving the advertisement in question.

The Commission’s treatment of these matters indicates that it has no intention to intervene and second-guess a broadcaster’s judgment – unless the licensee knows an ad to be false and broadcasts it nonetheless.  Absent such circumstances, threats of taking the broadcaster to the FCC are unlikely to result in adverse action. severe penalties imposed by the Commission.  There are still other risks, however, that broadcasters must consider when airing non-candidate issue ads, such as civil actions for claims of defamation.  Generally, libel and slander occur when a person or entity communicates false information that damages the reputation of another person or entity.   But how does that principle apply to public figures?

In the 1964 case of The New York Times v. Sullivan the United States Supreme Court established an important standard for defamation of a public figure (that is, one who places him- or herself in the public limelight, which includes candidates for elective office.  In recognition of the Founding Fathers’ desire to foster the free flow of ideas to create an informed citizenry, the Court extended First Amendment protection to nearly all speech, even if defamatory, in connection with political issues.  The Court held that the principle of open debate of political issues and government was too important to citizens in a democracy, where a free marketplace of ideas is critical to informed decisions.  It also recognized that open debate frequently becomes caustic and emotional, with sharp attacks infused into the effort to persuade.  That is certainly as valid a characterization of the political process in the 21st century as it was in 18th century America.  In order to balance that goal against an individual’s right to protection against blatantly false accusations, the Court imposed upon public figures claiming to have been defamed the burden of proving that a defendant acted with actual malice – that is, knowledge that a statement was false or was very likely to be false.  Thus, in order to hold someone liable for defamation, a candidate for political office must demonstrate the statement made about them was made with knowledge of its falsity.[3]

As applied to broadcasters, to be held liable for defamation, the broadcaster would have to actively participate in perpetrating statements it knew or strongly suspected to be false.  While ultimately this involves a determination of fact by the trier of fact in a court of law – and that process can be very time-consuming and expensive – the simple act of making a preliminary inquiry of the advertiser to establish a reasonable basis for the statement (and reviewing the response to be sure that it seems plausible) should be sufficient to overcome a charge of actual malice.

In the campaign example mentioned above, stations sent a letter to AFSCME’s agency requesting a response to the law firm’s letter.  The agency responded with a line-by-line argument supporting the statements in the ad.  That alone may have been sufficient for the broadcaster under the standards reported here, but going one step further, the broadcasters asked their legal counsel to analyze the response, which, as anticipated, revealed the truth to be quite gray, allowing either side to claim to be right, proving the wisdom of the Court in The New York Times v. Sullivan and enabling the broadcasters to use their own judgment as to whether to continue running the ad in question.

So, generally speaking, when faced with allegations of libel, slander, fraud or misrepresentation regarding a public figure in an ad that is not a “use,” a good practice would be to ask the sponsor of the ad for justification.  If the response appears reasonable, the Commission and the courts do not require that the broadcaster be the guarantor of its truth, but only that the broadcaster not act with malice or knowingly participate in a deception.

 


 

[1]Adoption Of Standards Designed To Eliminate Deceptive Advertising From Television (Petition Of Tube (Termination Of Unfair Broadcasting Excesses)) 32 FCC 2d 360 (1971)

[2] 43 FCC 2d 590 (October 19, 1973)

[3] There are frequent challenges to the actual malice standard, most recently in 2021.  As of yet, the Supreme Court has not overturned this standard, however, if the standard were overturned, the risk of liability for broadcasters would likely change.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.

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