Why Don't Truth In Advertising Laws Apply To Political Ads?

Listener Donna Savage Tyson from Concord, Mass., has noticed an uptick in political ads on TV in recent weeks, and it got her curious about a few things. She reached out to WGBH's Curiosity Desk with a two-part question.

TRUTH IN ADVERTISING

Truth in Advertising laws in the United States are administered by the Federal Trade Commission (FTC). The laws exist to protect consumers, and they give the FTC wide latitude to regulate.

"It extends to all types of advertising," explained Mary Engle, the associate director of Advertising Practices at the FTC. "Traditional TV, radio, print. As well as internet, social media, digital, search advertising. You name it."

If the agency deems an ad false or misleading, they can fine a company, take them to court, and even pull their ads from the air. But, Engle said, the FTC can only regulate practices in commerce.

"We don’t have jurisdiction over activities that are fully protected by the First Amendment," she said.

That includes, for example, the contents of a book. And — yes — political ads.

"The core of the First Amendment really is protecting political speech," said Claudia Haupt, an associate professor of law and political science at Northeastern University.

So, does that mean a candidate for office can literally say anything they want, no matter how untrue or outrageous? Yes, Haupt said. Pretty much.

"Lies are protected in public discourse," explained Haupt.

Case in point. In 2006, Congress passed a law that criminalized making false claims about one’s military service. A local candidate in California who was falsely claiming he’d won the Congressional Medal of Honor, was brought up on charges. His case went all the way to the Supreme Court.

"And the Supreme Court said, 'No, First Amendment. You can lie about your military service. ... You can’t ban lies in public discourse,'" said Haupt.

But the airwaves — where political ads run — are not exactly the public discourse, and there are some rules and regulations in place.

For one, the Federal Election Commission requires that television and radio ads include disclosure about who produced them.

"There are rules in place through the FCC — the Federal Communications Commission — that regulate broadcasters in significant ways, cable to a lesser extent, and don’t apply at all to internet/online providers," said David Oxenford, a partner at the D.C.-based law firm Wilkinson, Barker, and Knauer who specializes in broadcast media.

Broadcast networks like NBC, ABC and CBS are required to sell ad time to all candidates for federal office. They are also restricted from altering the content of those ads, no matter how distasteful, offensive, or untrue they may believe them to be.

"The broadcaster can’t do anything about the substance of that ad," said Oxenford. "We’ve seen situations where white supremacists have run for congressional office so that they can get access to the broadcast airwaves and put out their message."

Oxenford notes that this requirement to run ads untouched applies only to those produced by the candidate. When it comes to ads made by a third party — say, a PAC or a trade union — broadcast networks do have some wiggle room.

"A lot of times, the broadcaster will go back and say, 'Hey, we can’t run this ad, these particular claims are arguably false,'" said Oxenford. "And a lot of times the sponsor of those attack ads will come back with an edited script."

But cable networks, like Fox News or CNN, are not subject to those same strict requirements. This is why CNN was free to reject a controversial Trump campaign ad last month, and why FOX News and MSNBC were allowed to choose to air it.

LIBEL, SLANDER AND DEFAMATION

When it comes to liability, networks generally can’t be sued for the political ads they run, but candidates can indeed sue the makers of an ad for defamation.

"It’s rare," said Oxenford. "I’ve seen a couple of cases here and there."

Several lawyers interviewed said that defamation suits are hard to prove in the first place. It's even harder when the person suing is a public figure. And it's even harder still when they are a public figure in the political sphere.

"In order to sustain a libel, or slander, or other defamation claim, you've got to prove: not only was the claim false, but it was made, essentially, knowing that it was false," said Oxenford.

In general, Oxenford said, ad makers are pretty skilled at toeing the truth line without crossing it.

"Most of the attack ads are based on policy, voting, clients that they worked with, companies that they did business with," said Oxenford. "[They're] not based on character attacks, especially not when those character attacks are false."

One place where the FCC does not have jurisdiction over political speech is on the Internet. This is in part why social media platforms have become such a controversial battleground. Twitter has decided to step away from political ads altogether. Facebook has taken the opposite approach, saying — for now — it will not fact-check political ads on its platform.