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Why are candidates allowed to lie in political ads, and why do TV stations run the commercials?

Kirkmeyer commercial
Posted at 5:09 PM, Nov 03, 2022

DENVER — By now, most viewers are probably sick of all of the political ads running on television. As elections get closer, more and more political ads run on television stations across the country to make one final pitch to voters, and they have proven to be effective in the past.

Come November 9, all of those ads will stop, but in the meantime, it’s up to voters to withstand the onslaught of commercials.

“I think you can see, judging from the ads, that the urgency ramps up as the deadline comes. If you're 10 or 14 points behind in your race, why not take a chance, right? There's nothing that says that you can't stretch the truth with regard to political advertising,” said William Huddy, a senior lecturer with the department of communication studies at Metropolitan State University of Denver.

In the meantime, it’s important for viewers to remember that not everything said in those ads is true.

Most recently, a commercial from Republican State Sen. Barb Kirkmeyer, who is running to represent Congressional District 8, has come under scrutiny for false allegations against her Democratic opponent, State Rep. Yadira Caraveo.

In the ad, Kirkmeyer appears on camera talking about the potency of fentanyl before saying, “Yadira Caraveo and liberal Democrats voted to legalize fentanyl possession. You heard me, they legalized fentanyl.”

That claim is not true.

Kirkmeyer was referring to a law passed by the legislature in 2019. That law, which had support from both Republicans and Democrats, made it so that possession a small amount of fentanyl would no longer be considered a felony offense. Instead, it became a misdemeanor crime under state law to possess less than four grams of fentanyl.

Then, this year, lawmakers largely walked back those changes, making it a felony once again for people to possess one gram of fentanyl. However, under both laws, fentanyl was not considered legal.

While this is the latest example of falsehoods in political advertising, it is far from the only example, and both sides have been known to stretch the truth from time to time.

That Kirkmeyer ad has appeared on news stations like Denver7 in recent days, despite calls from some Democratic groups to have it pulled from the airwaves.

When it comes to political advertising that comes directly from candidates, broadcast channels like ABC, CBS, PBS and NBC have little latitude to pull ads down because they are not allowed to interfere with free speech.

“The Supreme Court gives extra protection to “robust” political speech, which political ads clearly are. The court decided over 50 years ago in NY Times v Sullivan that false and misleading statements about public officials are perfectly legal, as long as they are not made with “malice” and “reckless disregard” of the truth,” said Don Mayer, a professor of business ethics and legal studies at the University of Denver.

One of the most commonly cited examples of this stems back to an ad from a 1972 campaign where a candidate was allowed to make racist claims within a political ad without having it pulled from the air.

The Federal Communications Commission refused to allow stations to remove the ad because it would interfere with free speech. These broadcast stations are also largely protected from lawsuits for running false political ads.

Cable channels, on the other hand, like CNN, Fox and MSNBC have much more latitude to determine which ad they want to allow and not allow on their airwaves. In fact, in 2019, CNN rejected two ads from former President Donald Trump’s reelection campaign because of inaccuracies.

There is one important distinction: broadcast channels are allowed to reject or pull ads from non-candidate groups like political action committees or political parties (except when they coordinate with candidates). However, this can be tricky and will inevitably lead to long discussions about free speech.

Because broadcasters are allowed to pull them, they can also be held responsible for them.

These commercials make up the bulk of the political advertising seen on television in markets across the country. The group Ad Impact estimates that a total of $9.7 billion will be spent on political ads this election cycle alone.

So why are candidates allowed to lie in ads?

The answer comes down to FCC rules, or rather the lack of rules when it comes to political advertising. There are no rules requiring candidates to tell the truth in their ads or state where they got their facts from. That’s why its so important for news outlets to fact-check ads.

This is a striking difference from the Federal Trade Commission, which regulates commercial ads for things like toys, clothing or cans.

The FTC has strict rules requiring certain disclosures for things like prescription medications and also bars advertisers from purposely lying or misleading the public about their products.

Over the years, the FTC has been known to sue one company after another for false advertising. Often times, those lawsuits result in large settlements with the companies.

State consumer protections commissions can also sue commercial advertisers for false or misleading speech

For the political candidate ads, the Federal Elections Commission does have one requirement in particular: candidates must say who they are and that they support the message contained within the commercial. Other than that, candidates have a lot of range over what they are allowed to say. They can, theoretically, be sued for a lie that attacks another individual. However, that can be difficult to prove and take longer to resolve than the election itself.

“If candidate Caraveo wished to run to court and get an injunction against the public airing of Kirkmeyers's ad, she would have to show that the statement was made with “malice” and with “reckless disregard” of the truth. She might succeed in this case, but once the ad airs, the damage is largely done,” Mayer said.

So when it comes to political advertising, don’t believe everything you see or read and do some homework before casting your ballot.

“There are a couple of standard rules that you should follow. Number one, make sure you have more than one information source on any given issue. Also, you want to trust your instincts,” Huddy said.

And hang on, the midterm election is almost over, and soon, those ads will end.