As we move into the final weeks of the 2020 campaign, many candidates and PACS will begin to run negative ads. This is always a delicate situation, and it is worth noting the potential liability for broadcasters.
Under federal law, a broadcaster cannot edit a political advertisement that is purchased by a candidate’s authorized campaign committee. In return, a station cannot be held liable for broadcasting the advertisement. However, there are limits to a broadcaster’s immunity.
Stations may be held liable for false and defamatory statements included in ads purchased by third-party PACS. David Oxenford noted in a recent article:
“[B]roadcasters 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...
In 2020, President Trump’s campaign brought a lawsuit, which was ultimately dismissed, against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory...
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..."
The key point is that a station has the right to reject advertisements offered by a third-party PAC. Because it can reject the advertisement, a station is then held responsible if the advertisement contains defamatory content. Again, Attorney Oxenford explains:
“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. But 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.”
Accordingly, stations must pay attention as to who is purchasing the political advertisement. If it is from a federal candidate's authorized campaign committee, you are required by law to broadcast the ad. In return, the station will have immunity. On the other hand, if the advertisement is being purchased by a PAC or entity that is not the candidate’s authorized committee, you can be held liable for the content of the ad. Of course, you have a right to reject these advertisements.
It is also worth remembering that the immunity given for running candidates’ ads under the Communications Act applies only to broadcasting. The immunity does not extend to digital platforms. Of course, there may be separate immunity for digital platforms under § 230 of the Communications Decency Act.
This is a complex area of law, and you should consult your counsel if you feel the content of a PAC advertisement may create liability issues for your station.
Noted broadcast attorney David Oxenford has written extensively on this topic. You can find his excellent broadcast law blog here.