Candidate’s Guide to Election Free Speech

October 17, 2008 | Insights

By Paul C. Watler

The rapidly approaching 2008 general election finds candidates from all parties intensifying efforts to reach voters through the media. The Internet has become increasingly important to campaigns, but buys in traditional media such as television, radio, and newspapers also proliferate at the closing stage of the election cycle.

While the campaigns heat up, often so do legal disputes over candidate messages. There has been an increased tendency in recent years of threats of legal action or even the filing of lawsuits against candidates over their campaign ads and literature. Sometimes the threat of legal action is intended to get an opponent to pull an ad. Occasionally, the courts are even asked to grant injunctions against campaign ads. Candidates know they enjoy freedom of speech under the First Amendment, but often are unsure of the extent that the law protects their campaign messages.

Here are frequently asked questions and answers:

How much protection does the First Amendment give to candidate free speech?

Our constitution broadly protects free speech in two fundamental ways:

  • First, there can be no prior restraint of a candidate’s right to free speech. No judge or other government official may order that speech be restrained in advance or that it be submitted for pre-approval or censorship.
  • Second, the only speech that may be punished through a civil damage suit for defamation after it is published is speech constituting knowing or reckless falsehood. Thus, First Amendment protection extends even to false speech when the inaccuracy arises from an innocent mistake or a well-founded belief in its truth.

When do negative campaign ads cross the line under libel law?

A candidate or campaign that publishes a statement knowing it is false or while entertaining doubts about whether it is true may be subject to damages in libel. Conversely, a candidate or campaign that forms a well-founded belief in the truth of a statement and does not intentionally disregard contradictory information should enjoy First Amendment protection from damage suits.

May my opponent get an injunction to stop my ads?

No. Prior restraints of speech – even speech that is false and defamatory – is not permitted under American law.

My opponent sent a lawyer letter to the TV station demanding that it stop running my ads. Is the TV station required to pull my ads?

Broadcast licensees who agree to air a political advertisement by a legally qualified candidate for state or federal office are bound by the “no censorship” provision of federal law. This provides that a station may not edit, substitute, or refuse to show an allegedly defamatory campaign ad.

Jackson Walker has broad experience in defending free speech cases involving candidates, campaigns, and elections. The firm’s courthouse successes range from the 1986 election to the 2006 contest. See Howell v. Hecht, 821 S.W.2d 627 (Tex. App. Dallas 1991) (candidate for Texas Supreme Court did not defame opponent) and KENS-TV, Inc. v. Farias, 2007 WL 2253502 (Tex.App.—San Antonio, August 8, 2007) (candidate for state representative not entitled to damages against television station over allegedly defamatory campaign ad).

— Paul Watler is a partner at Jackson Walker. He can be reached at

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.