Watch For The Last-Minute Unfounded Attack Ad

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Election Day 2022 is just hours away, and political ads blanket the airwaves across the country.  From discussions Wilkinson Barker Knauer attorney David Oxenford has had with many attorneys, broadcasters and other campaign observers, the ads this year have been particularly aggressive.


“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,” he warns.

Broadcasters are forbidden from censoring the message of a candidate. It is Section 315 of the Communications Act that strictly forbids a broadcaster or a local cable operator from censoring a candidate ad. “Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads,” Oxenford says. But, he adds, “some have taken that to mean that broadcasters have no fear of liability for any political ad.”

As Oxenford explained in a recent interview with WDIV “Local 4” in Detroit, 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,” he says.

In 2020, President Trump’s campaign brought a lawsuit against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory.

In this election cycle, Oxenford notes, there are press reports of a lawsuit by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist.

“Even Roy Moore, the defeated Senate candidate from several years ago in Alabama, successfully pursued a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct,” Oxenford says.

But, while these legal actions are not common, they do occur, and stations must take seriously any claim that a political ad that they are running is false, Oxenford advises.

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