With SuperPAC money flowing and political ads running on Internet streams, caution in dealing with political spots is in order.

There may be just a few weeks remaining in this election season, but broadcasters should be paying attention – now and in future elections – to an important aspect of the political advertising business: the extent to which they may be able to demand changes in, or refuse to air, political ads because of their content. One key protection that covers the broadcast of some political spots does not cover all such spots, and it definitely does not appear to cover any non-broadcast distribution of even the spots that are protected when broadcast.

The Communications Act and the FCC’s rules prohibit broadcasters from censoring political candidates’ ads in any way if those ads are “uses”. In this context, a “use” is an ad, sponsored by a legally qualified candidate or the candidate’s campaign committee, that includes a recognizable likeness or image of the candidate. The candidate may be seeking a federal office or a state or local office. The ad buy may be the first one run by a candidate for that particular office, or it may be bought by a candidate taking advantage of the “equal opportunity” requirement created by the fact that the candidate’s opponent aired a “use” already.

If it’s a political “use”, broadcasters can’t touch the content.

That’s so even if the content could, in a non-political context, result in liability for the broadcaster – for example, if the ad contains defamatory statements or obvious untruths, or if it infringes on somebody’s intellectual property interests, or if it shows graphic or disturbing images. (The classic case of the latter involves troubling images of aborted fetuses inserted into ads produced by anti-abortion advocates running for office.)

Because Congress prohibits broadcasters from censoring such ads, broadcasters enjoy immunity from liability arising from the content of such ads. So even if a political “use” contains, say, blatantly defamatory statements, the broadcaster cannot be held liable for any harm to the defamed individual. The recourse for a party claiming to be injured by the contents of such a political ad is to sue the candidate who produced the ad.

But there are a couple of very important caveats.

First, the “no censorship” prohibition applies only to “uses”. That still leaves a wide array of political ads which can legally be censored – or even rejected – because of their content. Ads by non-candidate third parties like PACs, labor unions, and other advocacy groups are not “uses”, even though they may resemble them in look and content. If a spot is not a “use”, a broadcaster who airs it is not necessarily immune from liability for any defamation, infringement, etc., occurring in the spot. That means that, before accepting a non-“use” political spot for broadcast, station personnel should take a very careful look at the spot’s content and be prepared to insist on changes – or even to reject it – if it gives rise to serious concerns.

Second, what if the station streams candidate ads over the Internet? The “no censorship” prohibition appears in Section 315(a) of the Communications Act, which deals only with broadcasting. Since Section 315(a) says nothing about non-broadcast media, it appears that that “no censorship” provision would not apply to ads distributed on the Internet – and if the “no censorship” provision does not apply, then logically such non-broadcast distribution would not enjoy the immunity otherwise accorded to broadcast of the ads.

This issue has not, to the best of our knowledge, been formally litigated anywhere … yet. But last summer the FCC’s political broadcasting expert spoke to the Florida Association of Broadcasters. When asked whether the censorship prohibition of Section 315 of the Communications Act extended to candidate ads streamed on the Internet, he responded that Section 315 applies only to over-the-air broadcasts by radio and television stations and not to Internet streams. Thus, as with third-party, non-“use”, political ads, stations are not prohibited from censoring the on-line version of any advertisement. In other words, Internet-streamed content that is knowingly and verifiably libelous or defamatory or that infringes on intellectual property rights could be grounds for a lawsuit against the party doing the streaming, i.e., the broadcaster, even if that content is identical to the content that enjoys immunity when it is broadcast.   

Given the facts that (a) according to Bloomberg, some stations are currently “awash” in SuperPAC cash, and (b) stations are increasingly simulcasting their content over the Internet, broadcasters need to be increasingly on their toes when it comes to taking political ad dollars.

[Blogmeister’s Note: This post has been adapted from an article that originally appeared in Radio Ink, which has kindly consented to its re-use here.]