Federal Appeals Court Strikes Down Ban on Political and Issue Advertisements by Public Broadcasters

Last week, a federal court based in California issued a surprising and sure to be controversial decision finding the Communication Act’s ban on the airing of political and issue advertisements by public broadcasters to be a violation of their First Amendment rights.  The decision is available here.  By a two-to-one majority, the court held that the ban on all paid public issue and political speech by public broadcasters is an unconstitutional content-based restriction on speech because the statute permits paid promotional messages by non-profit advertisers on these same stations.  While the court struck down the ban on issue and political advertisements, the court upheld the statute’s ban on advertisements for goods and services by for-profit entities.

Should this decision be affirmed on what would appear to be an inevitable appeal, the effect of the court’s decision will be to permit public broadcasters to carry paid political and issue advertisements but not regular commercial advertisements.  It should be emphasized that this decision does not require public broadcasters to air political and issue advertisements, but, rather, it simply permits public broadcasters to accept such ads if they choose to do so.  Public broadcasters remain exempt under a separate provision of the Communications Act from “reasonable access” claims by federal candidates.

The case raises important questions about the nature of public broadcasting, as it threatens to blur the lines between commercial and public broadcasting—at least as to political and issue advertisements.

The decision came in response to a challenge to the law by Minority Television Project (“Minority”), a nonprofit California corporation that operates the San Francisco public broadcast station KMTP-TV.  On August 9, 2002, pursuant to a complaint by another broadcaster, the FCC determined that Minority had violated Section 399b approximately 1,900 times over a three-year period by broadcasting paid promotional messages from for-profit corporations.  Minority was fined $10,000 by the FCC, which it paid, and then filed a complaint in the Northern District of California federal court seeking reimbursement of the $10,000 and declaratory relief.  After losing at the district court level, Minority appealed to the Ninth Circuit.

The Ninth Circuit panel concluded that the ban on all paid public issue and political speech was not narrowly tailored to the substantial government interest of ensuring high-quality educational programming on public broadcast stations, and was therefore unconstitutional.  In particular, the court found there was no evidence in the record before Congress at the time of the statute’s enactment connecting the ban on issue and political ads to the government’s interest in maintaining certain types of “niche” programming offered by public broadcasters.  The court also found there was no evidence that public issue and political advertisements are more harmful than promotions for goods and services by non-profits, which are allowed by the statute.

By contrast, in upholding the statute’s ban on regular commercial advertising, the court concluded there was ample evidence before Congress of a connection between the airing of advertisements for for-profit entities and a threat to public broadcast stations’ “niche” programming.

The decision raises numerous complexities for public broadcasters, including the following.

  • Public broadcasters cannot be assured that the decision will be binding in courts outside of the Ninth Circuit. (The Ninth Circuit includes the far western states—AK, AZ, CA, HI, ID, MT, NV, OR, and WA.)  Therefore, unless and until the FCC provides notice that it will no longer enforce the ban on issue and political ads for public broadcasters, public broadcasters in states outside of the Ninth Circuit’s jurisdiction are potentially subject to enforcement proceedings notwithstanding the Ninth Circuit decision.
  • For public broadcasters that are licensed to state governmental entities, there may be separate state law restrictions on their ability to air issue or political advertisements.
  • The decision does not overturn any private contractual restrictions that may exist as a condition of receipt of funding or programming affiliation.  To the extent that such conditions prohibit issue or political ads, those conditions will remain enforceable.
  • Public broadcasters will wish to consider the potential tax implications of accepting issue and political ads with respect to nonprofit or tax-exempt status.  For example, under the tax laws, tax-exempt Section 501(c)(3) corporations may not “. . . participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”  Such entities will need to consider whether they are permitted to accept political advertisements within the parameters of this prohibition.
  • To the extent that a public broadcaster accepts political ads, it will be required to offer such ads at the “lowest unit charge” consistent with the rules applicable to broadcasters generally.  How these rules will be applied to a station that does not air regular commercial advertising is not clear at this point.

There are several options for further review of the Ninth Circuit’s panel decision. The government may seek rehearing of the decision by the full Ninth Circuit court; it could seek review by the U.S. Supreme Court; or it could ask Congress to revisit this issue.  Given these options, and the likely controversy flowing from the decision, it is quite possible that the Ninth Circuit panel decision will not be the final word on this issue.

Primary Lineup Set in North Carolina

The primary election in North Carolina is Tuesday, May 8, 2012, with a second primary (if needed) being either June 26 or July 17The second primary will be June 26 if no second primary is needed for U.S. Representative races and it will be July 17 if there is a second primary for those federal races.  Since there are a number of multi-candidate primaries in the Congressional races, odds are that the second primary will be July 17  If no candidate receives 40% of the vote in the first primary, the second-place finisher can--but doesn't have to--call for a second primary.

We have covered disputes and issues relating to political advertising during prior election seasons  With this year's contested primaries in North Carolina and with the presidential election in the fall, we expect to have plenty to report on this year.  To kick it all off, we'll run down the primaries slated in North Carolina.

Federal Races


President Obama has no named opposition in the primary but consistent with State law, there is a line for "no preference" on the May 8 primary ballot.  There will also be such a line on the Republican presidential primary ballot.

The four major Republicans pursuing the White House are all on the North Carolina primary ballot--Newt Gingrich, Ron Paul, Mitt Romney and Rick Santorum.

U.S. House

Congressional candidates this year will run in new districts drawn by the 2011 North Carolina General Assembly, and, in many cases, the lines are substantially different than the last election.  In fact, some incumbents did not run again in large part due to the redistricting.

Democratic incumbents G.K. Butterfield (1st), David Price (4th), Mike McEntyre (7th), Larry Kissell (8th) and Mel Watt (12th) are seeking re-election and face opposition.  Butterfield, Price and Watt are favored for re-election while the 7th and 8th districts are highly competitive.

Republican incumbents Renee Elmers (2nd), Walter Jones (3rd), Virginia Foxx (5th), Howard Coble (6th) and Patrick McHenry (10th) are running again and are favored to win.

Two Democratic incumbents chose not to run for re-election--Brad Miller, who currently represents the 13th district but who was put in the 4th district with Price when the lines were redrawn, and Heath Shuler, who currently represents the 11th district, which was redrawn to be much less favorable to a Democrat.  Republican incumbent Sue Myrick from the 9th district chose to retire after many years in Congress.

Three other districts do not have an incumbent running and lean Republican based on the new lines.  They are the 9th district (Myrick's current seat), the 11th district (Shuler's current seat) and the 13th (Miller's current seat).   All have both Democratic and Republican candidates with contested primaries in the 9th (11 Republican candidates), the 11th (3 Democrats and 8 Republicans) and the 13th (2 Democrats and 3 Republicans).

Statewide offices


There 6 Democratic candidates for Governor with the best known being Lt. Governor Walter Dalton, former Congressman Bob Etheridge and Representative Bill Faison.

There are 6 Republican candidates with former Charlotte Mayor Pat McCrory being the strong favorite against a field of lesser-known candidates.

Lt. Governor

Two Democrats are running--Senator Eric Mansfield, who is an medical doctor from Fayetteville, and Linda Coleman, current State Personnel Director and a former Legislator and County Commissioner from Wake County.

There are 5 Republican candidates including Representative Dale Folwell from Forsyth County, Dan Forest (son of Congresswoman Sue Myrick) of Raleigh, Tony Gurley, Wake County Commissioner, and Grey Mills, a Representative from Mooresville.

Other Statewide offices

Attorney General Roy Cooper (D) is unopposed.

Incumbents State Auditor Beth Wood (D), Agriculture Commissioner Steve Troxler (R), Insurance Commissioner Wayne Goodwin (D), Labor Commissioner Cherie Berry (R), Secretary of State Elaine Marshall (D), Superintendent of Public Instruction June Atkinson (D) and Treasurer Janet Cowell (D) are all running for re-election and have contested races.

General Assembly

The Republicans currently hold margins of 31-19 in the Senate and 68-52 in the North Carolina House over Democrats.   In addition to allowing them to control activity at the Legislature, these margins are important related to gubernatorial vetoes.    A margin of 60% of those present and voting is necessary for Legislators to override a veto and thus Republicans currently have a "veto proof majority" in the Senate if all Senators vote by party, whereas they do not in the House.  Thus, both parties are competing not only for party control but also are closely watching the numbers related to future vetoes.

It appears that Republicans drew Legislative lines during the 2011 redistricting process that will best position them to maintain control of the General Assembly after the 2012 election.  There is still litigation challenging the redistricting but the May primary is going forward using the new lines and many observers expect the lines drawn last year to be the ones used for this year's election.

In addition, a number of senior leaders in both chambers and both parties chose not to run again, some of them due to being "double bunked" with other incumbents in the same new district.  Senators that chose not to seek re-election and that are not running for other offices include Republican Senators Richard Stevens of Wake County, Harris Blake of Moore County and Jean Preston of Carteret County and Democrats Bill Purcell of Scotland County, Linda Garrou of Forsyth County and Bob Atwater of Chatham County.

House members not running again or for other offices include Republicans Phillip Frye of Mitchell County, Carolyn Justice of Pender County, Mark Hilton of Catawba County and Bill McGee of Forsyth County.   Democrats in this category include former Speaker Joe Hackney of Orange County, Bill Owens of Pasquotank County, Phil Haire of Jackson County, Jennifer Weiss of Wake County and Maggie Jeffus of Guilford County.

State Senate

A number of incumbents are unopposed.   Unopposed Republicans include Senators Harry Brown (Onslow), Louis Pate (Wayne), Andrew Brock (Davie), Tommy Tucker (Union), Fletcher Hartsell (Cabarrus) and Kathy Harrington (Gaston).   The two unopposed Democrats are Wake County Senators Dan Blue and Josh Stein.

As for incumbents with opposition, 11 are Democrats and 20 are Republicans.    There are 11 seats that are open with no incumbent running.

State House

A couple of dozen incumbents (about the same number from both parties) are unopposed.  They include influential Republicans Ruth Samuelson of Charlotte and Tim Moore of Shelby and long-time Democratic members Paul Luebke and Mickey Michaux of Durham and Deborah Ross of Raleigh.

There are about 30 seats that are "open" (no incumbent running).  Although the new district lines are different from the old ones, similar districts were formerly held by 6 Democrats and 12 by Republicans, with the rest not held by an incumbent.


FCC Denies Political Advertising Complaint

In the final hours of the last business day before the Super Bowl, the Chief of the FCC's Media Bureau released an order denying the "reasonable access" complaint of Randall Terry against a Chicago television station.

Terry's campaign had been seeking to place ad buys on stations around the country leading up to and during the game.  He claimed he was a "legally qualified candidate" for the Democratic nomination for President. The ads featured disturbing images of aborted fetuses that would be potentially disturbing to some audiences.

As we wrote previously, a "legally qualified candidate" for federal office is entitled to certain benefits under federal law, including "reasonable access" to broadcast facilities.  Terry's complaint was based on a denial of access---Chicago TV station WMAQ-TV refused to grant the campaign's request to place a Terry spot during the Super Bowl.

The Bureau's decision to deny the Terry complaint was based on two rationales. 

First, the Bureau found Terry had not made a substantial showing that he was a "legally qualified candidate" entitled to access. 

Evidentiary issues were important to this aspect of the decision and are worth mention.  FCC rules and precedent have long held that it is the candidate's burden to make a substantial showing of candidacy.  And, when the FCC reviews access complaints, it will examine the evidence made available to the station at the time access is sought (not evidence later submitted with a complaint) in determining whether the station acted reasonably in denying access.  While not dispositive, the Bureau noted that the station had received a letter from the Democratic National Committee stating that the DNC did not consider Terry an actual candidate for its presidential nomination and that Terry could not satisfy its presidential candidate requirements.

Second, the Bureau determined that even if Terry had been a "legally qualified candidate" entitled to access, WMAQ-TV was justified in refusing to place spots during the Super Bowl game. While legally qualified candidates are entitled to "reasonable access" to broadcast air time, no candidate is entitled to "particular placement of his spots in a particular program on a station's broadcast schedule."  Stations may reasonably take into account limited spot inventory for highly rated annual programs and the fact that there may be no "equivalent broadcasts" should an opposing candidate seek equal opportunities after the fact.

Television stations in particular should keep the Terry decision in mind as we enter into this season of college basketball tournaments and awards shows.  While the decision is not an invitation to ignore ad buys from candidates during the most sought after programming (or to ignore buys from candidates based on disturbing content in the ad), it does offer insight into who qualifies as a "legally qualified candidate" and what kinds of things a station can consider when evaluating requests for time in highly rated annual broadcasts.



Federal Candidate Ad Entitled to Air Time; Cannot Be Censored

National news outlets are reporting that the NBC Network has asked presidential candidate Mitt Romney to stop using a television ad attacking Newt Gingrich that features former NBC News anchor Tom Brokaw.  The ad is available on the Mitt Romney campaign website and features Brokaw's reporting on ethics violations.

Some say the spot gives the impression that NBC is biased against Gingrich or in favor of Romney. As reported in the Wall Street Journal, Brokaw has said he is “extremely uncomfortable with the extended use of my personal image in this political ad.  I do not want my role as a journalist compromised for political gain by any campaign.”

So why can’t NBC owned and operated stations, or NBC-affiliated stations, simply say no to the ad and take it off the air? 

The reason is two-fold—first, Romney is entitled to “reasonable access” to station air time, and second, the “no censorship” rule applies to the Romney spot.

Federal law requires radio and TV stations to provide “legally qualified candidates” for federal office—including candidates for the offices of President and Vice President, the U.S. Senate, and the U.S. House of Representatives—with “reasonable access” to their broadcast facilities.  “Reasonable access” does not require stations to give free time to federal candidates, but it means that a station may not have a policy of refusing to sell or give a “reasonable” amount of time to federal candidates.

Additionally, the “no censorship” rule applies to a “use” by a “legally qualified candidate.”  A “use” means any positive appearance of a candidate whose voice or likeness is either identified or readily identifiable.  In this case, consistent with FCC staff decisions on the issue, Romney’s appearance and voice in the sponsorship identification at the end of the spot is sufficient to render this ad a “use” to which the “no censorship” rule applies.

Under the “no censorship” rule, unless the material broadcast is legally obscene or indecent, a station may not censor the content of a candidate’s broadcast even if it is libelous, a copyright violation, inflammatory, or otherwise offensive.  A station can insist on a compliant sponsorship identification to be included if it has not been (for example, “paid for by” and the name of the sponsor), but otherwise it may not censor or alter the spot (unless it is legally obscene or indecent).  

The “no censorship” rule would seem to put stations in the difficult position of being required to air political advertisements that expose them to legal liability—for example, for defamation or invasion of privacy.  On the contrary, under federal law, TV and radio stations cannot be held liable for the content of a “use” by a “legally qualified candidate.”  

Accordingly, stations are obligated to grant the Romney campaign committee “reasonable access” to their air time until the Romney campaign chooses to pull the spot.

Fox News Sues U.S. Senate Candidate For Copyright Infringement

In a truly unusual move, Fox News Network and one of its highest profile journalists, Chris Wallace, filed a lawsuit earlier this month against the campaign of Robin Carnahan, a candidate for U.S. Senate from Missouri.  The lawsuit, which you can read here, alleges claims for copyright infringement, invasion of privacy by misappropriation of likeness, and invasion of the right of publicity by misappropriation of identity.

Those claims arise out of Carnahan's use in a campaign ad of a 24-second clip of Wallace questioning Carnahan's opponent, Roy Blunt, in 2006.  According to the complaint, the ad infringes on Fox News' copyrights and misappropriates Wallace's image and identity.  The complaint also alleges that this use was for commercial profit because the ad is available on Carnahan's website, along with links to donate to the campaign or buy campaign paraphernalia.

Carnahan responded to the complaint, filed in federal court in the Western District of Missouri, by requesting that the Court expedite the briefing in order to resolve the case before the November election.  Fox News and Wallace filed an opposition to that motion.

Some observers have called the lawsuit "bogus," but it does raise a host of interesting questions for political candidates, news operations, and broadcasters.

Of course, showing news clips is the bread and butter of political advertising -- both positive and negative.  Most news operations are happy for the publicity.  In this case, however, Fox News and Wallace assert that the use of the clip falsely indicates to viewers that Fox and Wallace have endorsed Carnahan in the race.  

The complaint itself, however, undercuts the plaintiffs' claim of neutrality.  The very first sentence of the pleading starts: "In a smear ad against political rival Roy Blunt . . . ."  Moreover, according to Slate, the lawyer representing Fox and Wallace has also worked for Blunt.  Notably, according to other reports, Blunt himself has used news footage from cable networks, including Fox, in his own ads.

With all that in mind, the line between copyright infringement and "fair use," is not always clear, and journalists may have a legitimate reason to object to the use of their image and words to attack (or bolster) a political candidacy.  A particularly long clip, a clip that is edited to change the meaning of the journalists' words, or a clip that truly is used solely for commercial gain may draw an appropriate objection.

It is not clear from the complaint how the Carnahan ad is different from the run-of-the-mill political ad in how it uses the clip, and the ad has been taken down from Youtube and the Carnahan website.  The Kansas City Star newspaper describes the ad as follows:

The ad features Wallace questioning Blunt, who at the time was running for House majority leader.

You just said a moment ago that you have to show that you’re the party of reform,” Wallace says to Blunt. “You have to show that to voters. But some question whether you are the man to do that.”

Wallace continues, describing a 2002 incident where Blunt tried to insert legislation into a homeland security bill aimed at benefiting the Philip Morris tobacco company “while you were dating that company’s lobbyist.”

“Since 1999,” Wallace said in the interview, “you’ve received at least $429,000 in campaign contributions from lobbyists. And your campaign committees paid $485,000 to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the House?”

The ad ends with Blunt looking at Wallace.

We will keep you posted as this lawsuit moves forward in the coming weeks.

U.S. Supreme Court Strikes Down Limits on Corporate Political Speech on First Amendment Grounds

Yesterday, the United States Supreme Court ruled in Citizens United v. Federal Election Commission that corporations (and labor unions) may make unlimited expenditures to directly advocate for the election or defeat of a Federal candidate at any point in the election cycle.  The crux of the Court’s decision is that the First Amendment prohibits Congress from banning certain types of political speech based on the corporate identity of the speaker. The decision opens the way for greatly increased participation by corporations—large and small, for-profit and non-profit—in the election process.

Prior to yesterday’s decision, federal law, as amended by the Bipartisan Campaign Reform Act of 2002 (“BCRA,” informally referred to as the McCain-Feingold law), prohibited corporations and labor unions from purchasing ads that either expressly advocate the election or defeat of a Federal candidate or amount to an “electioneering communication”—that is, a communication that (1) “refers to a clearly identified candidate for Federal office,” (2) is made within 30 days of a primary election or within 60 days of a general election, and (3) is publicly distributed.  Since BCRA, corporations and labor unions have been permitted to engage in express advocacy and electioneering communications only through their political action committees (PACs).

The Supreme Court previously upheld the ban on corporate electioneering communications in 2003 in McConnell v. Federal Election Commission, relying on its holding in an earlier case, Austin v. Michigan Chamber of Commerce, that restrictions on corporate political speech are permissible in light of the Government’s interest in preventing “the corrosive and distorting effects of immense aggregations of wealth” by corporations.

In January 2008, Citizens United, a non-profit corporation, released a documentary entitled “Hillary: The Movie” about then-Senator Hillary Clinton, a candidate in the Democratic Party’s 2008 Presidential primary. Citizens United wished to make the documentary available through video-on-demand service within 30 days of the 2008 primary elections but feared that the film (and a series of three advertisements encouraging viewers to purchase the film through the on-demand service) would trigger the BCRA ban on electioneering communications because the film and ads “referred to” a Presidential candidate.  Citizens United sued in federal court seeking a declaration that the BCRA ban on electioneering communications is unconstitutional.  After a three-judge panel of the federal district court denied Citizens United’s requests for relief, Citizens United sought review in the Supreme Court.

The Supreme Court, in a 5-4 decision, yesterday held that “[t]he Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”  In so holding, the Court overruled Austin (which allowed the Government to restrict corporate political speech) and invalidated BCRA’s ban on electioneering communications.  Citizens United reflects the Court’s adherence to the principle that the Government cannot suppress political speech based on the speaker’s corporate identity.

Beginning with the premise that BCRA erects an outright ban on core political speech by corporations and unions, the Court applied “strict scrutiny” to the ban, requiring the Government to demonstrate that the law furthers a compelling interest.  The BCRA ban did not withstand that scrutiny: the Court found “no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers,” including corporations.

The Court addressed and rejected all three “interests” proposed by the Government to support the electioneering communications ban: (1) the “anti-distortion” theory adopted by Austin, (2) an interest in preventing corruption, and (3) and an interest in protecting “dissenting shareholders.”

The Court first declared that First Amendment protections cannot turn on a speaker’s financial ability (that is, “immense aggregations” of corporate wealth) to engage in political speech.  On that point, the majority was particularly troubled by the prospect that the anti-distortion rationale for the BCRA ban could be used to prohibit political speech by media corporations, which are currently exempted from the ban on electioneering communications.  The Court likewise rejected the anti-corruption rationale because independent expenditures simply do not present the same risk of quid pro quo corruption (or the appearance of corruption) as do direct contributions to candidates and parties.  And it rejected the shareholder protection rationale—that shareholders should not be compelled to fund corporate political speech with which they disagree—as both underinclusive (because the statute only bans some corporate speech at certain times) and overinclusive (because it applies even to single-shareholder corporations).

The Court concluded that “the First Amendment does not permit Congress to make categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”  With Austin thus set aside, the Court rejected the ban on corporate independent expenditures (for both electioneering communications and for express advocacy), because the law’s “purpose and effect are to silence entities whose voices the Government deems to be suspect.”  Given the primacy of political speech in our representative democracy, the Court said, “political speech must prevail against laws that would suppress it.”

The Court did not go so far as to strike down the BCRA disclaimer and disclosure requirements.  In the Court’s view, while more political speech enhances the political process, that speech should be transparent, so that the public can better evaluate the political message and the potential bias of the speaker.

The Citizens United decision is breathtaking in scope.

First, the content of political expenditures by corporations and unions is no longer at issue, because corporations and unions are no longer limited to engaging in so-called “issue advocacy.” Rather, they may now purchase advertising that includes a direct appeal to vote for or against a Federal candidate.  The distinction between “issue” and “express” advocacy by corporations and unions—which has muddled campaign finance law for so long—is dissolved.

Second, the timing of political expenditures by corporations and unions is no longer at issue.  After the Supreme Court held that corporate and union political expenditures are no longer limited to issue advocacy, it also struck down the BCRA prohibition on “electioneering communications”—and, with it, the 30- and 60-day windows that governed corporate political ads.  As a result, the Supreme Court’s test for distinguishing between permissible and prohibited electioneering communications articulated in 2007 in Federal Election Commission v. Wisconsin Right to Life is already a relic of campaign finance law.

Third, the number of entities that benefit from the decision is enormous.  The decision applies to all corporations and unions regardless of size or tax status.  This means that both traditional for-profit corporations and tax-exempt political organizations—e.g., Section 527 organizations such as Moveon.org and Club for Growth—may make unlimited political expenditures to expressly advocate for the election or defeat of a Federal candidate.

Fourth, the Court’s reasoning calls into question similar campaign finance laws enacted by nearly half the States.

Yesterday’s ruling does not, however, alter the longstanding bar on direct corporate contributions to federal political candidates. Corporations and unions continue to be prohibited from making contributions to federal candidates from their general treasuries.

*     *     *

The Citizens United decision has already generated a massive volume of commentary, some positive, some negative.  President Obama, for his part, has vowed to "develop a forceful response" to the decision, which he asserted gives "a green light to a new stampede of special interest money in our politics."  The U.S. Chamber of Commerce hailed the ruling, stating that it "protects the First Amendment rights of organizations across the political spectrum, and is a positive for the political process and free enterprise."

As the Court itself acknowledged, the decision undoubtedly ushers in a new era of campaign finance in America, namely pairing corporate independent expenditures with disclosure requirements.  It remains to be seen whether Congress will make a renewed effort to limit participation in the political process by corporations.

Hagan Drops Political Ad Lawsuit; Coleman Suit Dismissed

In a prior post, we reported upon the institution of legal actions in the midst of two high-profile U.S. Senate campaigns.  There were important developments in both matters yesterday.

As we reported, Kay Hagan instituted an action over a political ad run by North Carolina incumbent Elizabeth Dole.  Hagan, who ultimately won the race, filed a document in North Carolina state court contending that Dole's ad contained defamatory statements about her.  Yesterday, Hagan filed papers with the court dismissing her claim.

In Minnesota, incumbent Norm Coleman filed suit over a political ad run by his challenger, Al Franken.  The race for Coleman's seat remains uncalled, with Coleman maintaining a razor-thin 206 vote lead as the recount process begins.  Yesterday, an administrative law judge in Minnesota entered an order dismissing Coleman's complaint, a decision she reached after conducting a probable cause hearing on November 7, 2008.

In the order, the judge ultimately concluded that there "is not probable cause to believe [Franken] violated Minn. Stat. s. 211B.06," which prohibits a person from disseminating a false political advertisement that the person knows is false or is reckless as to its truth.  The decision examined a statement in the ad that Coleman had been "ranked the fourth most corrupt Senator in Washington" by an organization called the "Center for Responsibility and Ethics in Government,"   (The administrative law judge had previously concluded that another statement Coleman challenged, that he is "living almost rent free in a million dollar home of a Washington insider," fell outside the purview of the statute because it constituted opinion and could not be proved true or false).

The statement at issue was drawn from report prepared by the organization that named "the 20 most corrupt members of Congress."  The report also named four "dishonorable mentions," a list that included Coleman.  The list of twenty included three Senators, and Coleman was the only Senator among the "dishonorable mentions."  Neither list included numerals or any numbering scheme.  Coleman contended the statement in the ad that he was the "fourth most corrupt Senator" was false because he was not included on the organization's list of "20 most corrupt" members of Congress.  Coleman also pointed to a statement from the executive director of the organization that her group does not actually rank the persons on the list.  In response, Franken contended the statement was true because, as the executive director acknowledged, "96 other senators did not make the list at all."  Coleman also challenged the ad's characterization of the organization as a "bipartisan watchdog group," contending the group instead was "liberal leaning."

In concluding that Coleman had failed to establish probable cause of a statutory violation, the judge found the statement in the ad to be "substantially accurate, if not literally true in every detail."  According to the judge

[B]ased on the reference in CREW's Executive Summary to the 'list of 24,' there is an objective basis for the inference drawn in the Franken advertisement that Senator Coleman was the fourth Senator on the overall list of 24.

The judge also rejected Coleman's claim with respect to the characterization of CREW as a "bipartisan watchdog organization" on the grounds that it did not relate to the personal or political character of Coleman and, in any event, it constituted a non-actionable statement of opinion.  Given her conclusion that Coleman had failed to demonstrate the ad contained an actionably false statement about Coleman, it was unnecessary for her to address whether Franken acted recklessly or with knowledge of falsity.

Coleman has the right to seek reconsideration of the decision.


Legal Actions Initiated over Political Ads in High-Profile Senate Races

Not even two weeks after we highlighted the issue of defamation claims arising from political ads, those very claims are making headlines right now in two high-profile political races.

Just this week, two United States Senate candidates—Minnesota incumbent Norm Coleman and North Carolina challenger Kay Hagan—have instituted legal action against their political opponents over alleged defamation in political ads.

The subject of Coleman’s suit against challenger Al Franken is a political ad claming that Coleman was “ranked the fourth most corrupt Senator in Washington” and that he was "living almost rent-free in the million-dollar home of a Washington insider."  As we discussed in a prior post, claims that a politician is "corrupt" or has been involved in "corruption" have been the subject of other litigation.

Kay Hagan's legal action involves a political ad run by incumbent Elizabeth Dole.  In the papers Hagan filed in court, she contends the ad "falsely implies that [Hagan] shares the views of an entity that calls itself the Godless Americans PAC."  Hagan also takes issue with the way the ad ends, which includes an image of Hagan while a voiceover from someone apparently associated with the PAC states "There is no God."  Hagan contends that this depiction "implies it is [Hagan's] voice and her statement."  Prior to institution of a legal action, Hagan aired an ad of her own responding to Dole's ad. 

In response to a "cease and desist" letter from Hagan's attorneys that preceded the legal action, attorneys representing Dole defended the accuracy and legality of the ad and indicated that Dole would not pull it, contending that the ad "plainly states facts."  Dole has moved to dismiss Hagan's action, and she has run a new ad on the same topic.

We will follow the progress of these lawsuits.  Because both ads were candidate ads, the television stations that aired them were provided immunity from liability under federal law.  However, these lawsuits serve as further reminders that political ads can give rise to litigation.

Beware as Charges of "Corruption" Fly in Political Advertisements

With two weeks left in a hotly contested election season, the airwaves and newspapers are jammed full of political ads supporting (or attacking) one candidate or another.  These ads make for great political fodder, but they can also present knotty issues for broadcasters and newspapers to consider in deciding what to run and what not to run, especially as the ads become more negative in the late days of the campaign.

With negativity comes the possibility of defamation liability, especially when the target of the negative ad ends up losing the election.  While broadcasters enjoy immunity from liability for ads sponsored by candidates for state or federal office, there is no such protection for so-called "issue" ads sponsored by persons other than candidates, by political parties or by third-party interest groups.  Newspapers have no such immunity at all.  This means for political ads other than candidate ads broadcast over the air, broadcasters and newspapers are potentially on the hook for defamatory statements contained in the ads they run.

Generally speaking, as the California Supreme Court has said, “short of accusations of crime or personal dishonesty, the First Amendment protects even sharp attacks on the character, motives, or moral qualifications” of a public official, which includes candidates for elective office.  But political ads don’t always stop short of those kinds of accusations.  In fact, ads linking a candidate, either directly or implicitly, to illegal activity or to political corruption are not uncommon.

The first thing to remember is that if an accusation contained in an ad is true, you cannot be liable for defamation.  So when you are asked to place such an ad, ask for backup that supports the statements accusing the candidate of illegal activity or corruption.  Also be mindful that any person or company mentioned in the ad other than the candidates themselves may be a potential defamation plaintiff.  Ask for backup as to any potentially defamatory statements made about them as well.  (Public officials will also have to show that you acted with a high degree of fault in airing the advertisement--the famous "actual malice" standard--but that is the subject for another post).

It may well be the case that statements made in an aggressive ad are neither clearly true nor demonstrably false, such as “Senator X is the most corrupt politician in the legislature.”  Is the proper response, “Corruption is an opinion, and since I (or someone) truly hold (or holds) that opinion, it cannot be a false statement.”  Unfortunately, the U.S. Supreme Court foreclosed that argument in the case of Milkovich v. Lorain Journal.  The Court held: “If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth.”  That implication is enough to support liability for defamation.

As for the underlying charge of corruption or illegality, the rule in almost every jurisdiction in the country is that a false statement that accuses someone of committing a crime or that “tends to injure the plaintiff in his or her trade, business or profession” is libel per se.  So, for example, when one candidate for mayor of a town in New Jersey distributed flyers that said that his opponent’s “corruption will bring increase in 1990 taxes,” the New Jersey Supreme Court held that the statement was defamatory.  In that case, however, there was clear evidence that the deal in question was not illegal or corrupt because a state investigative commission had cleared the mayor of any wrongdoing.  Similarly, the Texas Supreme Court upheld a libel verdict against a talk show host who had repeatedly accused a judge of being corrupt because the evidence at trial showed those statements to be verifiably false.

The rub is that an implicit accusation of "corruption" may be hard to prove true or false.  The question you have to answer, then, is how close to the line you want to walk as a news operation.  The simplest rule to follow is the more directly an ad accuses someone of corruption or illegal activity, the more concrete evidence supporting that accusation you should require before running the ad.  The stakes are too high to be less careful—the judge in the Texas case above was initially awarded compensatory and punitive damages totaling $8 million.