The truth in political advertising: 'You're allowed to lie'
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Political candidates can say some outrageous things.
Sometimes, those things are even lies, like in an ad from Arizona gubernatorial candidate Kari Lake.
Lake, a Republican former TV anchor who has been endorsed by former President Donald Trump, got lots of attention with an introductory ad in which she invoked the lie that the 2020 election was rigged (and that the news media won't cover the rigging).
"If you're watching this ad right now, it means you're in the middle of watching a fake news program," Lake said in the ad. "You know how to know it's fake? Because they won't even cover the biggest story out there: the rigged election of 2020. And rigged elections have consequences."
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The Lake campaign spent only about $5,000 on the ad buy on local broadcast stations in Phoenix, Tucson and Yuma, according to the ad-tracking firm AdImpact. The spot aired 13 times locally, compared with 20 times on national cable. Ads, especially introductory ones, are intended to get attention, and this one appears to have gotten a good bang for the campaign's buck.
While it may have gotten her some attention to curry favor with the Trump-supporting base — the former president's Save America political action committee even pushed it out — it raises an old question: Can candidates simply lie in their paid ads?
The short answer is yes.
"Unfortunately, you're allowed to lie," said Tom Wheeler, former chair of the Federal Communications Commission under President Barack Obama.
The Lake campaign did not respond to emails requesting comment on the fact that the ad's premise is a lie.
While the Federal Trade Commission regulates truth in commercial advertising, the FCC does not do the same for political ads.
Some have called for a "neutral government regulator" to oversee political speech, but there's no broad, serious movement in Congress for something like that.
In fact, various courts have repeatedly upheld the First Amendment right of candidates to essentially say what they want on federally regulated broadcast channels. Local broadcast television stations (think ABC, NBC, CBS) can't reject ads, even if they're blatantly false.
Where it can get confusing, though, is that cable TV channels don't fall under the same umbrella and are able to reject ads. CNN did this a couple of times with Trump campaign ads that had falsehoods in them, for example.
Stations can reject ads from non-candidate outside groups. Super PACs that support candidates often do a lot of the dirty work for the campaigns, airing negative ads.
When it comes to digital advertising, platforms such as Facebook and Twitter have wide latitude to ban ads, and there are essentially no federal rules, as these regulations (or lack thereof) were written before the digital age.
Some in Congress have been trying to add more disclosures to online political advertising, but one effort, the Honest Ads Act, has gone nowhere.
Wheeler, who also advocates for stronger disclosure rules, explained further:
How does it work as far as regulation of truth and political ads goes for the federal government?
There's a First Amendment hurdle that has to be crossed, and that has traditionally proven pretty high insofar as making judgments about factual statements.
Where the federal government can do some things, and hasn't done enough, is on the question of political advertising and attribution of those ads. There is a requirement in the FCC rules that an advertiser has to disclose who's advertising, right?
It's not a big deal when a commercial for Corn Flakes says it's Kellogg's, you know that, right? The problem is that a political ad that is sponsored by Americans for Puppies and the Flag, you've got no idea who that is. And it is one of the things that, frankly, we were getting ready to deal with at the FCC, and I had made the decision to wait until after the 2016 election, because I didn't want this to become politicized.
The Republicans hated this idea — the idea of requiring real disclosure. I mean, who is Americans for Puppies and the Flag? And unfortunately, the November 2016 election turned out as it did and that activity died. But that's the principal way in which there is a legal First Amendment-respecting route to at least making it clear who's behind whatever the message is.
So is the only filter basically cable channels who are allowed to reject false ads or the candidates themselves?
Yeah. The government stepping in and saying, "This is good speech, this is bad speech" is something that the government has tried to avoid.
What about ads that have falsehoods in them that wind up getting on the air?
Unfortunately, you're allowed to lie.
Do you think there should be or shouldn't be some kind of federal regulation on truth?
So what was the old expression? Truth is beauty — beauty is truth. The First Amendment is an abiding and important, if not essential, concept in an American democracy. And I got very concerned, for instance, when former President Trump thought that the FCC should be making determinations as to whether what was put online was a quote, good faith, unquote, determination. I don't think that that's a political body's decision.
What more can the federal government do? You've talked a lot about disclosure.
You ought to have the ability to understand who's putting up the nontrivial amount of cash necessary to disseminate this message, but when whoever that is is hiding, you have to ask yourself, first of all, why are they hiding?
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