Election season has barely begun but is already leaving a bad taste in the mouths of many. Tensions are running high and there are still seven weeks to go before the March 3 primaries, so this is an opportunity to educate our readers and advertisers regarding political advertising.
Newspapers are not legally required to fact-check political ads before publishing them. Political speech is afforded the highest level of protection under the First Amendment, which prevents government censorship of content.
Truth in advertising laws do not apply to political ads. The Federal Trade Commission regulates commercial advertising for truthfulness but does not have jurisdiction over the content of political speech.
All news stories that run in the Polk County Enterprise are fact-checked for accuracy and letters to the editor urging voters to vote for or against candidates in local elections are also fact-checked and are not accepted beginning two weeks prior to the start of early voting.
Political advertising is a different beast altogether though. The Enterprise will not knowingly publish factually incorrect information. However, advertising representatives are not required to verify the information in political ads.
The individual or political action committee purchasing and placing the ad is the one liable for the information contained in the ad and there is a unanimous Supreme Court ruling protecting the press on this.
“You are not required to verify the information in the ad,” Thomas S. Leatherbury said. Leatherbury is director of the First Amendment Clinic at Southern Methodist University Dedman School of Law and his area of expertise is First Amendment law.
“New York Times v. Sullivan was a case about a political ad, and in instances where you are dealing with public figures (candidates) and issues of public concern, you are protected by the ‘actual malice’ standard. If you don’t know the information is false, then you are not liable for republishing it,” Leatherbury said.
New York Times Co. v. Sullivan was a landmark U.S. Supreme Court decision ruling that the freedom of speech protections in the First Amendment restrict the ability of public officials, including candidates, to sue for defamation. The decision held that if a plaintiff in a defamation lawsuit is a public official or candidate for public office, then not only must they prove the normal elements of defamation – publication of a false defamatory statement to a third party – they must also prove that the statement was made with “actual malice,” meaning the defendant either knew the statement was false or recklessly disregarded whether it might be false.
