Morning Digest: Here's what happens when campaigns try to knock misleading third-party ads off of TV
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The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, and Carolyn Fiddler, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, James Lambert, David Beard, and Arjun Jaikumar.
● NC-13: Democrat Kathy Manning, who is running against Republican Rep. Ted Budd, says her campaign has succeeded in getting two local TV stations to stop airing an ad from America First Action, a pro-GOP super PAC, that she calls «inaccurate and misleading.» The spot, which is still available online, claims Manning and her husband «got nearly $2 million in government money» to help pay for a «luxury hotel.» Manning says her family never «received a dime of taxpayer money» for the project and adds that she has no involvement in the hotel (so once again, we’re seeing an ad that tries to hold a woman responsible for something her husband has done).
Evidently, the lawyers at the two TV stations in question, WXII and FOX 8, agreed with Manning’s take and decided to reject AFA’s ads. We haven’t actually seen this sort of thing transpire all that often this cycle, so this is a good opportunity to explain why third-party ads are vulnerable to getting taken down like this.
Under federal law, broadcasters cannot censor or refuse to air ads from candidates as long as they’re paid for. (Earlier this year, a TV station in New Mexico had to run a spot from a Democrat who started his ad by saying, «Fuck the NRA.») Consequently, because they have no choice, stations have successfully argued that they should not be liable as publishers if they’re ever sued for defamation for anything said in a candidate ad. But they’re under no similar obligation to run ads from outside groups, which means that, in those cases, they are potentially liable for defamation.
Knowing this, campaigns try to hunt down inaccuracies (real or perceived) in third-party ads and demand that broadcasters stop airing them, with the stated or unstated threat that if they fail to comply, they could find themselves on the receiving end of a lawsuit. Whether or not such suits would ever succeed, TV and radio stations have to think hard every time as to whether they want to incur legal costs should a campaign ever follow through. WXII and Fox 8 decided the answer was no.
But not all broadcasters immediately roll over every time they get a lawyer letter. No one likes being bullied, but more to the point, these companies want the ad revenue. That’s why they typically have their own legal departments review grievances like these to assess their merit. If they wind up disagreeing with the complainants, then they’ll tell them to get lost and will keep running the ad in question.
It’s also worth noting that sometimes, when a station nukes an ad, the group airing it will edit out or rephrase the offending material and then try to re-air it. But given that AFA’s ad is entirely focused on claims that two TV stations have concluded are false, it may be hard to do that here. If AFA, which recently reported spending $602,000 on airtime for this, still has money left over for its current flight, it might just choose to run a different spot.