Can and Should You Censor a Political Ad?

| April 8, 2015

By Steven J.J. Weisman
TALKERS
Legal Editor

 

weismanwriterBOSTON — The victory of incumbent mayor (and former White House Chief of Staff) Rahm Emanuel over Cook County Commissioner Jesus G. Garcia in the April 7 runoff election for Chicago’s mayoral seat notwithstanding, the election is already quite noteworthy for a political television advertisement that Chicago voters got to see on the local Fox and NBC affiliates, but not on ABC 7 — Chicago’s highest rated local network affiliate — when ABC’s corporate legal department objected to two claims made within the advertisement.

The first objection dealt with a claim asserted in the advertisement that Emanuel earned $ 18 million as an investment banker between 1999 and 2002, but was paid that money although he performed, in the words of the advertisement, “almost no work.”  ABC objected to the phrase, “almost no work,” arguing that there was no support for that allegation.  Additionally, ABC objected to the allegations contained in the television advertisement that Emanuel used his position as mayor “to turn his brother’s investment in Uber into a billion dollars.”  Again, ABC said that there was no factual basis for this allegation.

Real Chicago, a Political Action Committee, which produced the advertisement, cited published reports from Chicago Magazine, Chicago Reader and the Chicago Sun-Times to support the allegations contained in the advertisement. Laura Grock, a Real Chicago PAC representative indicated that they stood by the commercial and would not make the changes proposed by ABC saying “No, we won’t change the ad – especially not at this date.  The Chicago Magazine article substantiates our claim as to the ‘almost no work’ and the valuation on the Uber stock has been discussed in the media.”

So who is right, who is wrong and what are the obligations of broadcasters regarding political advertising?

Television and radio stations have the option to not broadcast any political advertising.   But if they choose to broadcast campaign advertising, they cannot refuse to broadcast campaign advertisements from any candidate.  Radio and television stations also do not have the right to censor the advertisements of candidates. However, along with the inability to censor the candidate’s message comes protection from liability for any misleading or libelous statements contained in the advertisements.

However, this protection from liability does not extend to third party political advertisements by PACs or others.  Television and radio stations face potential liability for misstatements contained in non-candidate political advertisements.

So what should radio and television stations do to protect themselves when presented with non-candidate political advertisements?

First and foremost, although there is no precise legal standard to guide radio and television stations, they should review the statements made in the advertising for accuracy and reliability.  Radio and television stations should ask the producers of the advertisements for the information supporting the claims contained in the advertisements.  In this particular case, would the fact that articles had appeared in Chicago Magazine, Chicago Reader and the Chicago Sun-Times be sufficient?  Would a reference to an article in Rolling Stone magazine be sufficient?  It is up to the individual radio station and television station to make its own determination as to the accuracy and reliability of the information with the understanding that radio and television stations may be held liable for allowing statements in third party political advertisements that they know to be false or should have known were false after doing a reasonable investigation.  A reasonable investigation by a radio station or television station surely would not require their own intensive, independent investigation and first party sources, but when inflammatory statements are contained in political advertising, as so often is the case, it is incumbent on radio stations and television stations to do more than a cursory review of the evidence supplied in support of the allegations.  It is worth noting that this controversy emerged in the same week that Rolling Stone magazine, which has done much legitimate journalistic reporting, was sued for what we now know was a false story about a gang rape at a University of Virginia fraternity.

If it seems like I am not giving you any clear guidelines for evaluating third party political advertising, I apologize, but unfortunately that vagueness represents the present state of the law.

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Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com.  He can be e-mailed at: stevenjjweisman@aol.com.  Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams. Meet Steven J.J. Weisman at Talkers New York 2015 on Friday, June 12.  To register call, 413-565-5413. 

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Category: Legal