With the 2022 midterm elections coming up in November and primaries currently taking place, political ads are already being aired across the country for candidates. The 2020 election cycle was the most expensive yet, with spending on political ads totaling $14.4 billion across TV, print, and radio – a number that’s expected to grow in 2022.
Several VERIFY viewers have reached out to us to ask if political ads that air on TV have to be truthful. Dan emailed us saying he was confused when he saw some claims in an attack ad that ran contrary to other things he'd read about the candidate, and wondered how that was allowed on television.
Are political ads required to be factual in order to air on TV?
- American Bar Association
- Federal Communications Commission
- The First Amendment of the U.S. Constitution
- The Federal Trade Commission
- William Lee, Ph.D., professor emeritus at the University of Georgia’s Grady School of Journalism
- David Schultz Ph.D., law professor at the University of Minnesota and political science professor at Hamline University
No, political ads on TV aren’t required to be factual. The First Amendment protects political speech on television, but the people who make the ads may be liable for defamation depending on what the ad claims.
Broadcast news networks and their local affiliates – such as ABC, NBC, FOX and CBS – aren’t allowed to censor or edit ads directly from the candidate. Different rules apply for cable networks like MSNBC and CNN, which can choose what ads to air and can request edits. But in both cases, politicians are not required to provide factual statements in their ad campaigns.
WHAT WE FOUND
You’ve probably seen campaign ads for politicians and wondered how they’re allowed to say certain claims on television. Political ads are held to a different standard than other commercials you might see, like those for prescription drugs or products, which can be penalized by the government for spreading falsities.
Political ads are considered political speech, which is protected under the First Amendment. The Federal Communications Commission (FCC) oversees campaign ads and enforces rules for political programming, like disclosing sponsorships and making sure legally qualified candidates get “equal time,” but that doesn’t mean it fact-checks what’s being said.
“The FCC generally does not review or pre-approve the content of political ads before they are broadcast, ensure the accuracy of statements that are made by candidates and issue advertisers, require broadcast stations and other regulatees to provide all sides of controversial issues or oversee the nature and extent of the coverage that individual candidates receive in news programs,” says the agency.
Broadcast networks like NBC and CBS are required to sell ad time to all candidates for office and can’t alter what’s in the ads, even if it’s untrue or offensive. This is known as the “equal opportunities law.”
“Congress put into the equal opportunities law provision, which says that no station may censure the remarks of a candidate,” said William Lee, Ph.D., professor emeritus at the University of Georgia’s Grady School of Journalism. “So, consequently, candidates have the freedom in their ads on broadcasting to say very outrageous things or show outrageous imagery.”
Stations can put disclaimers before an ad that might have sensitive material in it, but they can’t edit or censor the ad if it was produced by the candidate. Stations can request edits to ads produced by PACS or third parties, though it's rarely done.
“They could proceed with the ads with disclaimers, and many stations do that where there's an advertisement that is extraordinarily provocative, but under the law, they are required to air them as submitted by the candidate,” Lee explained.
While broadcast news networks can’t edit the content and aren’t able to reject ads from appearing, cable news networks like Fox News and MSNBC aren’t held to those exact same standards. They have more leeway in determining what campaign ads appear on their networks, Lee said. Their companies can decide whether or not to reject an ad or request edits to the ad.
This doesn’t mean politicians have free rein to go on TV and lie without consequence, says Lee. If a candidate makes a defamatory statement about another candidate, they can face defamation suits and legal action, but Lee said it’s usually hard to prove.
“Most of the rhetoric that you hear in political ads is not about fact. It's more opinion, like, my opponent is unqualified, or my opponent is unethical,” Lee told VERIFY. “That's very different than saying my opponent is a felon, which is a statement of fact that could be defamatory and proven. So, when it comes to the arena of free speech for politicians and their supporters, it's pretty much a free-for-all, with the caveat that if you say a false factual statement, that's defamatory and you are liable.”
Lee made it clear that it’s not the TV stations who would be liable for the defamation suits, but rather whoever produced the advertisement.
David Schultz, a media law professor at the University of Minnesota, explained candidates are allowed to say what they want in ads because a core tenant of free speech is allowing voters, not the government, to decide what is true, and television stations aren’t able to censor or moderate that debate.
“The rationale behind it is the idea that candidates get to say what they want, and the voters get to sort through the marketplace of ideas and decide what's true, what's false,” Schultz said.
So how can you help decide what’s true and what’s false when looking at ads?
Be skeptical of their content and look for how they’re produced, Lee and Schultz say. It’s also helpful to know where you saw the ad to help better understand the process behind approving them – and remember that social media is an entirely different ballgame.
“Candidates and organizations can post whatever they want on their own websites and their own social pages,” Schultz said. “At the end of the day, a group does have a First Amendment right to post on their own page all kinds of things that they want to say… so there is a different set of rules depending on where you saw it [the ad.]”
You can also look for the messaging and fine print near the end of the ads, which will give you an indication of who created them.
“At the end of every advertisement, where the candidate wants to get that special advertising rate, the candidate must appear either in face or voice and say, ‘I'm Mary Jones, and I approve this message,’” Lee said. “Now, if it's an ad by a Super PAC, it must say at the end of the ad or somewhere in the ad, it must say that it's not affiliated with a candidate.”
You can also check the ad’s political files, which the FCC requires radio and TV broadcasters to publish, and see who paid for the advertisements. You can look up your local station’s file at fcc.gov, and see who filed for the ad and when.
“Really pay attention to who is paying for them,” Lee advocated. “I liken political advertisements to the old 19th-century snake oil salespersons, who promised various elixirs that would solve all of your ills and make happiness just around the corner if this candidate got elected. Not so much, I would say. View all of this stuff with an extraordinarily skeptical lens.”
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