Election Ads 101: Five Facts About the First Amendment and Political Advertising

October 18, 2022 | Podcasts

With the 2022 midterm elections around the corner and the 2024 presidential election less than two years away, candidates from all parties are intensifying efforts to reach voters through the media and, in more recent cycles, social networks. First Amendment attorney Paul Watler joined the Jackson Walker Fast Takes podcast to walk through five facts candidates should know when publishing or broadcasting political ads this election cycle.

Courtney White: Hi, everyone. I am Courtney White, and this is Jackson Walker Fast Takes. Midterm elections are less than a month away, and U.S. political parties are spending record amounts on political ads. According to Ad Age, midterm political ad spending could hit a record $9 billion. With this backdrop, I have asked one of my colleagues, Paul Watler, who is a recognized First Amendment litigator, to share a few facts about election ads. We will call our session today, “Election Ads 101.”

Paul, we’re very excited to learn a few facts that candidates need to know when publishing or broadcasting political ads this election cycle. Paul, will you share the first election ad fact with us?

Paul Watler circlePaul Watler: I’d be happy to, Courtney, and thank you for hosting us today.

The first thing I would point out is under our First Amendment to the U.S. Constitution, and as many of our listeners know, that amendment guarantees the right of free speech to all Americans. This free speech clause, in particular, its main purpose is to protect political discourse. So, the legal protection under the First Amendment that’s given to speech is at its highest when that speech involves discussion of a political issue or a question of governmental policy. In other words, campaign advertisement, which is all about political issues and questions of government policy, receives considerable First Amendment protection.

Courtney White: I think that’s a great fact for us all to keep in mind – that political speech is highly protected. Would you share your second fact with us, please?

Paul Watler: Under the First Amendment, there’s the concept that there can be no prior restraint of a candidate’s right to free speech. This means that, for instance, a campaign ad cannot be subjected to pre-publication review or censorship by the government. It also means that a judge, for instance, may not enter an injunction requiring a candidate to take down or remove a campaign ad.

Courtney White: I did not realize that. Thank you for sharing that. I’d love to hear your third fact next.

Paul Watler: Yeah. Another one that I would mention is the important protection of political speech. Another aspect of that, under the First Amendment, arises involving what’s called defamation cases. That’s when one person—say, in our context here, an opposing candidate—complains that a campaign advertisement defamed that person or injured their reputation unfairly. In that kind of case, a candidate who’s defending against a civil lawsuit for money damages for defamation is protected if the candidate did not knowingly or recklessly make a false statement. Now, this means that the First Amendment will protect even political speech shown to be false as long as the inaccurate statement was the result only of an innocent mistake or a well-founded belief in its truth.

Courtney White: I think this fact is one of the most important ones for us to keep in mind. There have already been a lot of statements that, in another context, might be considered defamatory, but in the political context are not. So, thank you for sharing that with us. Would you share your fourth fact with us, please?

Paul Watler: A lot of these advertisements that voters see during election seasons come from over-the-radio or television stations carrying these campaign ads. The Federal Communications Commission, which regulates over-the-air broadcasters, requires those stations to accept campaign ads from all candidates, regardless of the content of the ad or the political viewpoint of a particular candidate. This means that a television station or radio station cannot reject and it cannot censor a candidate’s advertisement. It also means that stations must charge candidates the same rates for paid advertising, can’t charge more for one candidate just compared to another candidate.

Courtney White: That is an interesting point. I’d love to know: How can candidates ensure they are being treated fairly with radio stations? I helped a candidate and she found out that another candidate – same political party – had radio time that she did not get, and I had no idea how she would have known that. Is there a way for candidates to check and make sure they’re receiving what another candidate has received in terms of ad time?

Paul Watler: Well, one of the best ways, of course, is to be well-informed about what a candidate’s rights are and to make sure that you insist that you have these rights to air your ads over a radio or television station, and that you’re provided the opportunity to do so. Also, any person can always file a complaint with the Federal Communications Commission if they believe – whether that’s campaign staff or a candidate believes – that that candidate has been unfairly treated by over-the-air television or radio station.

Courtney White: Thank you so much for sharing that. Will you share your fifth fact with us?

Paul Watler: Yeah. We’ll move into the realm of things beyond television and radio broadcasters. Of course, we traditionally have newspapers and, in this day and age, we’re very familiar with social media sites.

Both newspapers and social media sites have their own First Amendment rights, and their treatment differs a little from how the Federal Communications Commission treats over-the-air radio and television stations. Just as an example in the newspaper area: A newspaper may reject, say, a letter to the editor or a column that’s been submitted by a political candidate or a campaign. That’s just part of the First Amendment right that a newspaper holds. Companies like Facebook or Twitter, the online outlets, also have some discretion to remove online content in certain cases, if the message conflicts with their Terms of Use.

Courtney White: And I’m sure many of our listeners are familiar with the claims of censorship on behalf of Facebook and Twitter, but those are definitely entities that have the right to decide whether they want to remove content.

Paul Watler: Yeah. Generally speaking, Courtney, that’s exactly right. I will point out that there’s been a fair amount of litigation just recently in this area, including decisions by the Fifth Circuit Court of Appeals, which covers Texas, specifically dealing with to what extent do online social media sites have the right to censor content or remove content and raising a lot of questions about that. That’s probably, these are probably issues that will ultimately be resolved by the U.S. Supreme Court. It probably will take several years to see that resolution. So, this campaign cycle, at least, it appears that social media sites will probably still have a fair degree of discretion in choosing, if they to choose to, to remove content that they say does not abide by their Terms of Use.

Courtney White: Thank you so much for sharing that fact with our listeners. Any final thoughts for us today?

Paul Watler: Well, I think the most important thing is the great rights and freedoms that we Americans have under our Constitution. Those are encompassed under the First Amendment to the Constitution, which is part of the Bill of Rights, and the first among those Bill of Rights. And it protects free speech. As we’ve been discussing today, that right of free speech particularly extends – and it’s at a very high level – when it comes to campaign advertisements, speech and debate and discussion about political issues, questions of whether or not certain policies should be enacted by Congress or state legislatures. All those kinds of political discourse, public discourse, all receive a very high level of First Amendment protection under our Constitution.

Courtney White: Thank you so much for giving us a little Election Ads 101. We truly appreciate it.

For additional JW Fast Takes podcasts and webinars, visit JW.com/Fast. Follow Jackson Walker LLP on LinkedIn, Twitter, Facebook, and Instagram.

The music is by Eve Searls.

Meet JW

Election and campaign finance laws are often complex, highly regulated areas of law. At Jackson Walker, we guide our clients through the maze of modern election laws and regulations to help them achieve their goals while avoiding the legal and ethical pitfalls that are all too common in politics. For more information about our broad experience related to candidates, campaigns, and elections, visit our Elections & Campaign Finance page or direct questions to Dallas partner Jonathan Neerman.

Jackson Walker’s media law group is one of the most prominent in the country, representing major clients in the television, radio, newspaper, magazine, and publishing sectors. Our media practice began in 1905 with representation of the old Dallas Times Herald and has grown into a practice that is now national in scope. With more than 115 years of experience in media law, the firm handles litigation and transactional matters involving news content, employment, entertainment, intellectual property, advertising, and other related matters. To learn more about Jackson Walker’s century-long dedication to local and regional broadcasters and news organizations, visit our Media Law page.

The opinions expressed 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. For questions related to free speech rights related to U.S. elections, please contact Paul Watler or any member of the Media Law or Elections & Campaign Finance groups.