Candidates can curse and lie in ads. Super PACs, believe it or not, are held to higher standard

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Last week, at least three North Carolina TV stations refused to air a NRSC commercial that falsely accused Democratic Senate nominee Cal Cunningham of personally benefiting from the federal coronavirus relief effort known as the Paycheck Protection Program (PPP). (Disclosure: Kos Media received a Paycheck Protection Program loan.) 

WasteZero, where Cunningham served as an executive until March, received at least $1 million in government support, but the candidate was no longer on its payroll by then. WasteZero’s CEO also said that Cunningham “was not involved in the application for PPP funds and did not benefit from them.”

This is one of the highest-profile ad takedowns so far 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. (In 2018, for example, 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 but to run such ads, 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.

However, they’re under no similar obligation to run ads from outside groups, which means that in those cases, stations are potentially liable for defamatory claims. 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 a suit might 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. In this case, a trio of North Carolina stations decided that 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 rerun it. That’s exactly what happened here: The NRSC took down its spot, but, rather than stop attacking Cunningham for something he wasn’t involved with, it began airing an edited version declaring that people “tied to Cal Cunningham” were benefiting from PPP.

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Candidates can curse and lie in ads. Super PACs, believe it or not, are held to higher standard 1