Carolina Curious: Do TV And Radio Stations Have To Run Political Advertisements?
Chances are, sometime in recent days, you’ve seen or heard a political ad. They’re everywhere right now, and they come in different packages - attack ads, the character ad, maybe an ad focused on endorsements.
It’s a lot to take in, and this election season, WFDD listener James Sims wanted to know if radio and television stations have any ability to refuse to run political ads, or if they’re obligated, even if the content is false.
To find the answer, WFDD's Bethany Chafin spoke with Associate Professor of Law Enrique Armijo at Elon University School of Law.
Editor's Note: The political ads we’re talking about here would not be heard on public television or radio stations like WFDD. That’s because, under the Communications Act, public stations aren’t allowed to run most political spots. So, for the purposes of this conversation, we’re talking about commercial broadcasters. This transcript has been lightly edited for clarity.
On broadcast laws when it comes to political ads:
Local television stations and radio stations basically have the obligation to treat all candidates the same. What that means is, basically if a candidate, either state or federal, wants to buy an ad on a local television station, the local television station sells the candidate the ad. And in addition, with respect to the falsity of the ad, broadcast stations, once they buy an ad from a candidate, they are basically immune from suit for anything in that ad that might be false or defamatory. Of course, candidates are free to sue each other for falsities in their ads but the station itself can't be sued for anything that a candidate says about another candidate in an ad.
On whether various types of political ads are regulated differently:
As I said, stations cannot censor candidate ads except with requiring some required sponsorship identification information. However, with respect to third-party ads, ads run by entities other than a candidate supporting the defeat of another candidate, there can be potential defamation liability for those third-party ads on behalf of the station as well as on the behalf of the person or entity placing the ad, so television stations do have to be careful about not running things that are clearly false.
On whether there are noteworthy case studies in terms of political ads:
It's very common actually for a candidate to complain to a station that an ad run by a third party or even another candidate is defamatory and to demand that that station stop running that ad. And what stations do in this circumstance is request documentation from the third-party advertiser. As I said earlier, the station cannot decline to run or to change a candidate ad that talks about another candidate but with respect to third-party ads, what stations do is generally ask for the documentation, review that documentation usually with the assistance of legal counsel, and it's a very rare case that a television station will take down a third-party advertisement, even one that is very maybe on the edge of telling the truth or not.
And the reason for that is because basically the law of defamation says that ... in order to successfully sue for defamation, someone running for office has to show that the statements in the ad are being made knowing that they're false or basically disregarding as to whether or not they're true. And that's just a very difficult showing for a candidate to make. And then there are good reasons for that, because the Supreme Court talked about the fact in the case of New York Times vs. Sullivan that we have to be able to be free to speak and even sometimes get things wrong about people who are running for office in order for the democracy to function. And that's really what the First Amendment is for.
On obscenity or graphic information in political ads:
The FCC is very clear on this. The candidate ads cannot be censored even if the radio station or television station would expose itself to FCC liability, you know, an ad that for example contained indecent language or contained some imagery that was obscene. The FCC has said that stations are immune for running those ads. But in exchange for that immunity, you can't make any changes to the ads or reject them.