With five days until Election Day, and gloves-off political ads wallpapering radio and TV aiming to move the needle for candidates, it's a potential recipe for disaster for stations airing last-minute 'desperation move' attack ads from PACs, parties and other non-candidate groups, where unfounded claims in those ads could spell legal trouble.
“Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads,” broadcast attorney David Oxenford says in his Broadcast Law Blog. “But some have taken that to mean that broadcasters have no fear of liability for any political ad, [which] 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.”
Oxenford cites recent examples of legal action brought against broadcast stations over political attack ads, such as a 2020 lawsuit filed by former President Trump's campaign against a Wisconsin TV station, alleging it ran a PAC ad making false and defamatory statements, and a reported suit during this election cycle by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for airing an ad that allegedly edited McMullin's remarks to make it seem like he said all Republicans were racist.
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