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What issues to consider when threatened by a candidate wanting a political ad pulled

 - By David Oxenford, Wilkinson Barker Knauer LLP

As reported by Politico, Ted Cruz’ campaign recently demanded that TV stations pull certain PAC ads which he claims distort his voting record on immigration issues.

This kind of claim from a political candidate about the unfairness of attack ads is common.

Here, Cruz’ representatives apparently don’t threaten lawsuits against the stations for running the ads, but suggest that it is a violation of the stations’ FCC obligations to operate in the public interest to continue to run the ads.

What is a station to do when such a claim is received?

Much depends on who is sponsoring the attack ad.

If the ad is sponsored by the authorized campaign committee of another candidate, and features the voice or image of the sponsoring candidate, the station cannot do anything.

I have previously written in detail, that a station cannot censor a candidate ad.

Once it has agreed to sell time to a political candidate or his or her authorized campaign committee, the station must run the ad as delivered by the candidate without edit (with the very limited exception of being able to add a sponsorship identification if one is missing, or when running the ad would constitute a felony, e.g. running a spot that is legally obscene – not just indecent but obscene, meaning that it has no redeeming social significance).

Because the station is required to run the ad as delivered by the candidate, the station has no liability for the content of the ad.

So, if the candidate being attacked complains, the station can do nothing to edit, censor or pull the attacking candidate’s ad without violating the “no censorship” provisions of Section 315 of the Communications Act.

The candidate being attacked has a remedy against the ad’s sponsor, not against the station. Third party ads, however, are different.

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