False Ads: There Oughtta Be A Law! Or -- Maybe Not

The First Amendment and the Federal Communications Act protect political ads

| September 16, 2004

'Candidates have a legal right to lie to voters just about as much as they want,' writes Brooks Jackson, director of the Annenberg Political Fact Check. There are laws that protect consumers from misleading product pitches, but few laws to protect voters from misleading campaign ads. Miss Cleo, the TV psychic, was fined $5 million and forced to pay $500 million to callers to her telephone psychic service, callers who were under the impression they were getting a 'free reading.'

So what happened when 1998 Ohio gubernatorial candidate Bob Taft aired an ad falsely accusing his rival Lee Fisher of 'cutting crime-fighting employees by 15%?' The bipartisan Ohio Elections Commission did everything right: they met and made a speedy decision well before the election -- they ruled that Bob Taft's ad was in violation of the state law against false campaign ads. And then they issued their punishment: a letter of reprimand. Taft won the election.

Situations like this occur all over the country, and Jackson reports that it's because of a combination of the First Amendment's guarantee of free speech and the Federal Communications Act, which says that if a broadcaster airs one candidate's ad, it must air the opponent's ad as well. This means networks are legally bound to air ads, even when the ads contain lies or outrageous content. Jackson provides the appalling example of J.B. Stoner's 1972 ad in Atlanta, Georgia, which contained free and gleeful uses of racial slurs. The FCC forced Atlanta broadcasters to air the ad.

Does the First Amendment guarantee candidates the right to say whatever they want? Yes, says Brooks Jackson. The Supreme Court ruled in 1971 that 'it can hardly be doubted that the constitutional guarantee (of free speech) has its fullest and most urgent application precisely to the conduct of campaigns for political office.' We all agree that freedom of speech is extremely important in America, but, Jackson writes, it has made it very difficult for states to make and enforce laws about campaign ads.

'All this,' concludes Jackson, 'should tell voters that -- legally -- it's pretty much up to them to sort out who's lying and who's not in a political campaign.' Journalists have a role too. Jackson's Annenberg Political Fact Check is a nonpartisan, nonprofit resource for voters. Their latest work has debunked Kerry's claim that our war in Iraq has cost $200 billion -- not yet, says factcheck.org, and diffused Zell Miller's accusations that Kerry won't spend money on defense -- that was only true 20 years ago.
-- Harry Sheff

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