Chances are you have seen a political ad and quietly, or loudly, asked yourself, “How can they lie like that? Is it even legal?”
The short answer is yes. It is legal for candidates for federal office to lie. When it comes to political ads, lies are protected speech under the First Amendment to the U.S. Constitution.
“If you want to say, technically, legally, it’s yes,” said Josh Scacco, Associate Professor of Political Communication at the University of South Florida. “However, if we think about it from an actual normative practice, it’s maybe.”
That’s because it all depends on where you are seeing and hearing these ads.
Some background here. There are truth-in-advertising laws overseen by the Federal Trade Commission (FTC). They can be used to crack down on TV, radio, print and all kinds of digital advertising. But the FTC has jurisdiction only over false and misleading commerce advertising.
Traditional broadcast media — over-the-air radio and television — are regulated by the Federal Communications Commission (FCC). The FCC has rules governing political advertising. If you sell time to one candidate, you have to sell time to all candidates. And you cannot refuse any of that advertising based on its content. That’s the First Amendment kicking in.
Remember, though, this applies only to your local radio and TV stations and their networks — CBS, NBC, ABC and Fox. Cable TV does not fall under these regulations. Neither does the internet and social media platforms like Facebook and Twitter.
So MSNBC can refuse to air ads it finds objectionable, but NBC cannot.
“This is where it gets really, really tricky,” Scacco said. “Traditional broadcast is governed by different standards than cable is, and social media is pretty much governed by no standard. This is, partly, why you see Twitter decided to ban all political advertising on its platform — concern about misinformation, that kind of stuff. This is also why Facebook has a completely opposite standard. So what this does is, it encourages candidates to go where they can get their message out.”
A candidate message can go absolutely unchallenged on a traditional TV network or, currently, Facebook. On cable, a channel like CNN can say no to a candidate ad.
“A couple of months ago CNN slapped back a Trump campaign ad and all they did is they went over to Facebook with it,” Scacco said.
True or not true, Federal Election Commission (FEC) rules demand that all political ads declare who made them. That’s why you hear those, “I’m Joe Biden and I approved this message” tags at the end of campaign ads. But you also hear, “This message was paid for by the Committee for… whatever.” That’s an ad made by a Political Action Committee, or PAC. The content of those third party political commercials can be challenged by licensed traditional broadcast outlets. Whether they are challenged is an example of what Scacco said is “the root of American democracy and capitalist media at cross purposes. You are asking commercial entities to choose between their number one goal, which is profit, versus their democratic goal. When do they step in?”
Remember, this is just the situation with federal candidates. Though less explicit, the right to lie is still pretty well protected at the state level, too.
“At the state level you are going to be dealing with a patchwork of completely different laws,’’ Scacco said. “Things like the federal standard that the candidate approves the ad don’t necessarily apply at many state levels. I know states have attempted to — Washington state is a good example. It has attempted to put in place procedures to prevent statewide candidates or state-based candidates from lying. Those have gotten icy receptions in the courts because of free speech concerns.”
To the media’s credit, it has been trying for years to inform the public when it is forced to air ads believed to be untruthful.
“In the late 1980s and early 1990s, the networks started airing questionable ads and then they ‘ad-checked’ them in real time. This really came to the fore after the 1988 campaign with the Willie Horton ads and the distortion there,” Scacco explained. The ads were run by backers of presidential candidate George H.W. Bush against former Massachusetts Gov. Michael Dukakis. The ads focused on a Massachusetts furlough program, under which Horton, a convicted murderer, was allowed to leave prison. He then raped a woman and stabbed her partner. The ads stuck Dukakis with a ‘soft on crime’ label .
The traditional broadcast media, Scacco said, tried to “push back against the requirement that they air these advertisements. There was nothing preventing them from critiquing them and picking them apart. Even that was problematic, though, because when you check an ad you still have to air the falsehood and that perpetuates the falsehood.”
Explaining the lie didn’t dispel it, it promoted it.
“What political communications researchers found is all the ad-check was doing was perpetuating the falsehood further,” Scacco said. “It’s the same thing today with fact-checkers and how fact-checkers operate. They have to air the false claim. That’s precisely the reason why candidates often lie with impunity because they know that in the process of being checked, the lie will still get perpetuated. This is how you embed the lie further.”
At this point, Scacco said, just passing laws to try to combat disinformation in political campaigns won’t solve the problem.
“If one of us waved a wand and fixes all the regulatory and legal stuff tomorrow we still have a very polarized public that has been fed a lot of very problematic information and messaging by political elites,” Scacco said. “Even true information — and we see this with coronavirus — if it does not comport with the partisan world views that people have developed, it will get rejected.”