Texas political advertising court case points to issues raised when accepting third-party attack ads

posted on 4.18.2016

A Texas judge has ordered a former state senator and one of Texas' largest anti-abortion groups to an April 25 mediation to settle a lawsuit stemming from the group’s third-party attack ad that was broadcast on Dallas-Ft. Worth area radio stations in 2014.

This case illuminates an important aspect for stations to consider when accepting third-party political advertising.

Unlike political advertising placed by legally qualified candidates, broadcasters are liable for the content of third-party ads.

TAB Associate member law firms have long advised member stations to pay attention when a legally qualified candidate raises an issue with a third-party political ad running on a station.   

David Oxenford, an attorney with Wilkinson Barker Knauer who conducted TAB’s political broadcast rules webinar in December, has written extensively about such attack ad issues and what a station needs to do when they receive a “take-down” notice from a candidate who is being attacked.

In this case, DFW area radio stations pulled a 2014 political ad placed by Texas Right to Life attacking then state Sen. Bob Deuell, R-Greenville.

The ad, which ran during a highly contentious Republican primary runoff election, claimed Deuell "turned his back on life and on disabled patients" with a bill he filed in the 2013 legislative session.

Deuell, a family physician elected to the Texas Senate in 2002, sent “cease-and-desist” demand letters to DFW area radio stations running the ad, saying the ad was false and defamatory.

The radio stations complied.

Texas Right to Life then placed a new ad with the stations that said “Bob Deuell is attempting to silence Texas Right to Life because they're telling you about his voting record."

Deuell lost the race to Sen. Bob Hall, R-Edgewood, by approximately 300 votes.

In an unusual twist, Texas Right to Life sued Deuell for "tortious interference" with a contract.

The group said Deuell “illegally” persuaded stations to pull its original ad, thereby forcing them to spend more money to develop and place a new ad.

Former state District Judge Frank Price will referee the settlement talks which Deuell’s attorneys already say will not bear fruit.

"Mediation will be futile because the purpose of this lawsuit is not to obtain recovery of damages for the loss to two days of radio advertising, but to make an example out of former Senator Deuell and to intimidate other elected officials who might oppose Texas Right to Life," Deuell’s attorneys said in a court brief. 

Texas Right to Life is seeking damages of more than $50,000 for the cost of producing and buying air time for a second ad and the loss of airtime for the original ad.

The group also wants a public apology from Deuell.

"The apology is one of the critical elements as far as we're concerned," the group’s attorney Trey Trainor told the San Antonio Express News.

"It took a lot for my client to raise the money to go on the air and then they had to hire an attorney to get them back on the air and then had to buy additional time to make up for lost time."

Deuell attempted to have the suit dismissed and when a Harris County judge rejected that 2015 effort, the Houston-based 1st Court of Appeals took up the case and ordered the mediation.

If settlement talks fail, the Court of Appeals would revisit the case.

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

---