Political Broadcasting Reminder – State and Local Candidates Subject to Lowest Unit Charge, No Censorship and Equal Opportunities Rules
In the waning days before the mid-term election, we have received many questions about the applicability of the political broadcasting rules to state and local candidates. In particular, we have seen a number of letters from attorneys representing candidates who are running for state and local offices (everything from Governor to county commissioner or school board representative), who claim that an attack by an opposing candidate is unfounded and that a broadcast station must pull that ad from the air. Just as is the case with Federal candidates, ads by state candidates cannot be censored by a station. Thus, except in certain very unusual situations (where the language of the ad would violate some Federal criminal statute, e.g. if it is obscene), a station must air the ad as it was created. It cannot be rejected because the station disagrees with the content or the tone, and it cannot be pulled even if the opposing candidate believes it to be defamatory. Because the station cannot censor a candidate's ad, they have no liability for the content of the ad, i.e. they cannot be held responsible for any defamatory content that it may contain, even if they are on notice of that content. They cannot censor an ad by a candidate or a candidate's authorized campaign committee - whether that candidate is running for a Federal, state or local office.
Note that, as we have written many times, this is in contrast to those situations where a candidate complains about an attack ad sponsored by a non-candidate group. In those cases, the station does have the option of whether or not to run the ad (the no censorship provisions of Section 315 of the Communications Act do not apply). Thus, if the station is on notice that there is potentially defamatory content in an ad, it must do some investigation of that ad, and make an informed decision about whether or not to allow the ad to continue to run. If it does not investigate, and continues to run an ad that is defamatory after receiving notice of that fact, in some extreme cases, it could face liability for that defamatory content.
Most of the other rules governing political broadcasting apply to state candidates as well as Federal candidates. The requirement that candidate be charged lowest unit rates for the class of advertising time that the candidate purchases in the 60 days before the general election applies with equal force to state and local candidates as it does to Federal candidates. And equal opportunities requires that a station sell comparable amounts of advertising time to competing candidates, or give free time to one candidate if their opponent appeared on a non-exempt program on the station, also applies to state and local as well as Federal candidates. Public inspection file obligations - that a station put in its political file information about the amount of political time purchased by a candidate, the class of time sold, the price of the spots, and the schedule that will run - apply to state and local as well as to Federal candidates.
The principal political rule that does not apply to state and local candidates is the "reasonable access" provisions of the rules. That is to say that stations need not sell time to candidate for all local races. They can pick and choose in which races they will sell time, or they can restrict candidates for a specific race to buying time in particular dayparts in which the station has more inventory. But once the decision to sell to candidate for a particular office is made, the other rules mentioned above apply.
More information about the political advertising rules can be found in the Davis Wright Tremaine Political Broadcasting Guide.