As far as political television ads go, one U.S. Senate candidate accusing his Connecticut opponent of being too cozy with Wall Street traders doesn’t seem all that outrageous.
The problem is, the main claim made by the ad isn’t quite true. Lawyers for the aggrieved candidate, U.S. Rep Chris Murphy, want it yanked off the air.
Do they have a leg to stand on? Nope, according to legal experts and the Federal Communications Commission.
But is that fair? The answer, of course, depends on who you ask. Welcome to election season, where candidates in races from the president on down are assailing the truthfulness of opponents’ paid messages.
At the heart of the matter is the federal Communications Act and the FCC “no censorship rule,” which protect stations and candidates from any liability resulting from false information in political advertisements. The bottom line is that no amount of crying foul by a candidate or his lawyers is likely to dissuade a TV station from running an ad.
“It’s really about the money,” said Alan Neigher, a Westport attorney whose practice includes communications law. “Those stations don’t want to lose that advertising income.” Even for a local station, political advertising can run into hundreds of thousands — even millions — of dollars in an election year.
The latest controversy erupted last week, when Michael Harrington, a lawyer for Rep. Murphy, wrote to ABC, NBC, CBS and Fox affiliates in Connecticut and asked them to stop running an ad submitted by former Secretary of the State Susan Bysiewicz. The two veteran Democrats are facing off Aug. 14 in a Democratic primary for the Senate nomination. The winner will get a crack at taking over the seat being vacated by U.S. Sen. Joe Lieberman, an independent.
In the ad in question, Murphy is accused of accepting “the most” contributions from Wall Street interests of any Democrat in Congress. Harrington said he asked the stations to stop running, saying the add uses old and misleading data.
Harrington, a partner with Murtha Cullina in Hartford, said the ad should be pulled because the stations have a duty under FCC regulations to protect the public from “false, misleading or deceptive advertising.”
But none of the stations have agreed to take action. Charles Sennet, who is assistant general counsel for Tribune Company and in that capacity the lawyer for the Fox affiliate, WTIC-TV, shot back with a letter of his own, explaining why the ads should remain on the air.
Sennet stated that the Federal Communications Act bars a station from refusing to broadcast a candidate’s advertisement based on its content, including whether it is positive or negative or “contains obvious falsehoods.”
“Accordingly, the station is powerless to consider the truth or falsity of the assertions in the advertisement in considering whether to broadcast it,” Sennet wrote in his response to Harrington. “Refusing to air the announcement because it is false and misleading would be clearly unlawful under applicable federal laws and FCC rules.”
Hedge Fund Hedge
In the 30-second commercial, which began airing July 19, Murphy is accused of accepting more than $700,000 from Wall Street-related interests since 2006. Hours after the ad first ran on TV, Bysiewicz’s campaign manager acknowledged there was what he called “a research error.”
Jonathan Ducote, the campaign manager, said that in 2008, Murphy was the fourth-largest recipient of hedge fund contributions, not the largest. Both he and Bysiewicz have since stood by the ad, saying they have no intention of yanking it off the air or changing its content.
“It doesn’t matter if he’s the top hedge fund recipient or maybe he’s No. 3 or 4,” Bysiewicz said. “What’s the difference? In Washington, does it matter that you’re the fourth or the first or the second? I don’t think so.”
Under the Federal Communications Act, no one can bring legal action as a result of an advertisement paid for and sponsored by a candidate that features the voice or image of the candidate for four seconds or more.
Speaking on background, a top FCC lawyer said that some lawyers in “small-town markets” have had success writing cease and desist letters to TV stations and getting advertisements pulled. “Once in a while we’ll hear about a judge granting one of these requests because the judge doesn’t know federal law,” the FCC official said. “And when it comes to our attention, we remind everyone of the no censorship provision of the law.”
The law goes back to at least the 1950s, the official said, when there were concerns that radio stations would “edit” advertisements to omit language that station owners didn’t agree with politically.
Attorney Sennet, who is representing the Fox affiliate station, as he has many other stations in the past, said the no-censorship rule has been “interpreted that way by the FCC and the Supreme Court for more than 50 years.”
“A station may not turn down or remove from the air a candidate commercial on the grounds of what it says,” he reiterated. “It’s really black-letter law.”
The intent of the law was to protect the speech of political candidates. “Under the system we have, the candidates speak, and the public will decide what to believe,” Sennet said. “You can call it good or bad, but it’s the system we have.”
Even Harrington, the attorney who challenged the ad for Murphy, agrees that it’s tough battle to win. “People running for office sometimes take liberty with what they say, because the courts have said, it’s a public debate and let the public decide what to believe,” Harrington said. That protection of political speech has been extended to advertising.
Some lawyers and political observers believe there is little harm done by political ads that contain falsehoods. Often, the controversy over such ads provides voters with insights into candidates and how they deal with mud-slinging in the political trenches.
But while news stories about ads that stretch the truth “can really inform the public about the truth,” attorney Dan Klau, of counsel with McElroy, Deutsch, Mulvaney & Carpenter, said such false political speech can be harmful. “I believe that false political speech can cause very real harm,” Klau said, “both to the candidate who is the subject of the false speech and to the public at large, by underming the political process.”
On the national stage, Republican Mitt Romney’s campaign is now pushing back against President Barack Obama campaign commercials that have depicted him as having shipped jobs overseas while private venture capitalist.
Earlier this month, Romney campaign advisor Ed Gillespie said the charge in those commercials is, in his words, “a lie.” Appearing on NBC’s “Today” show, Gillespie said there isn’t any evidence that Romney outsourced jobs as head of Bain Capital.
Romney’s push-back against Obama, in turn, has been the basis for a new Romney campaign commercial. In the ad, the Romney campaign assails Obama for the outsourcing assertion and says, “When a president doesn’t tell the truth, how can we trust him to lead?”
The law gets more complicated when the ad is paid for by a group that supports a candidate, such as a political action committee. In these instances, untruthfulness isn’t protected. The law is even less forgiving when it comes to false statements in ads for commercial products. The past two years have seen a wave of class actions brought by consumers based on false advertising claims.
One such case was brought against Kellog’s, whose television ads claimed children who ate Frosted Mini-Wheats for breakfast improved their attentiveness by 20 percent.
Under the settlement, approved last year by a federal judge in Los Angeles, Kellogg’s agreed to halt the advertising claims and set up a $2.75 million fund for class members, who could receive $5 for each future box of cereal purchased up to $15.
Klau, who as a lawyer who has tackled many free speech issues on behalf of media companies, said he has been paying attention to the dispute over advertising brought by the Murphy campaign. Like others, he noted that there is a key distinction between deceptive advertising to sell products and false claims in political ads. That distinction, he said, is that political speech is “core First Amendment speech.”•