Lawyer for broadcasters warns about last-minute attack ads

Attack ads in the current political season "have been particularly aggressive," writes David Oxenford, an attorney who represents broadcasters. "Some publications have even suggested that, in the waning days of the campaign, the ads may become even worse as desperate campaigns look for some last-minute claim that could turn the tide in an election. In this rush to election day, broadcasters need to be on the alert for allegations that an attack ad from a non-candidate group is false or defamatory, because in certain instances, the ad could result in a claim against the broadcaster."

While broadcasters and cable companies can't censor ads, except the online versions, "some have taken that to mean that broadcasters have no fear of liability for any political ad," Oxenford writes. "That is not true. Broadcasters do theoretically have the potential for 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 was false and ignoring that notice."

Citing some examples, Oxenford acknowledged that they are uncommon, but "Stations must take seriously any claim that a political ad that they are running is false," and realize that the no-censorship rule applies only to ads run by candidates. "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. Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with 'negligence,' e.g., where they had notice that the ads were false, yet they continued to distribute the false material anyway."

Oxenford advises, "Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable. There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue."