What happens when a candidate for federal office calls another candidate gay in an attack ad? (see an article on the subject here: http://www.suntimes.com/news/metro/1961750,mark-kirk-gay-attack-ad-election-122809.article) Well as far as the broadcast stations are concerned, nothing – they are required to carry the ad in accordance with federal rules and they may not censor nor change the ad. Carriage on broadcast stations is required by the reasonable access provision of section 312 (a)(7) and the no-censor provision of section 315 of the communication act. What if the statement is a lie?
Well there are two remedies envisioned, the first is the power of the public forum. The aggrieved candidate can respond in the new media, by internet website, by blog, by twitter, by standing on a rock and proclaiming the statement a lie. Those are the quickest and probably most effective ways that a corrective response can be made.
Can they sue? Yes, probably (the law of defamation has high thresholds for public figure) but the legal process is a slow one. Compared to the speed of a campaign, the legal process will never catch up with the campaign rhetoric. so a lawsuit is possible, but most effective for post-campaign redress.
What about the broadcast stations? Why don’t they stop the speech? Well congress has immunized the stations and their responsibility is to carry the political speech. Censoring or changing political speech could be so dangerous that Congress has crafted rules that let the speech go forward and the consequences follow. In times of election, the policy is to let the electorate hear everything and decide for themselves.
Political speech is the most protected speech we have. Censoring it could keep important information from the public. Letting speech that might be a lie go forward also has its problems, but the other candidate has lots of options to correct it in the public forum.
American elections have been knock-down, drag-out affairs with name-calling since the beginning of time. The rules regarding broadcast carriage of spots continue the tradition of open speech. There have been many instances of this, for example in the 1992 election several candidates used the rule to compel broadcast stations to carry pictures of aborted fetuses in campaign advertising to call attention to their perspectives on abortion.
Do you think the rule needs changing? Or is the open forum on broadcast stations fine the way it is?
I have been interviewed in recent days on both WBBM radio and WLS-TV (ABC) as an expert on this issue.
Medialawprofessor 