Malcolm Rivera
Political campaigns and advertising have long been accused of spreading misinformation and distorting the truth. With the rise of social media and the internet, the spread of false information has become even more prevalent and insidious. While the Federal Trade Commission (FTC) enforces truth-in-advertising laws for commercial products and services, these rules do not apply to political ads. Social media platforms and cable news channels are generally not held liable for false claims made in political advertisements, although they may choose to implement their own policies to regulate such content. Newspapers and magazines, on the other hand, can be held liable for the content they choose to publish, including political ads, and may face legal consequences if the content is deemed defamatory or intentionally inflictive of emotional distress. Despite this, the First Amendment protects political speech, making it challenging to regulate the spread of misinformation in political campaigns.
| Characteristics | Values |
|---|---|
| Legal consequences for newspapers publishing political lies | Few, if any, legal consequences for newspapers |
| Who is liable for political lies in newspapers | The newspaper is liable for what they print |
| Government regulation of political lies in newspapers | The government cannot regulate the content of political ads |
| Newspaper brand and accuracy | Newspapers operate for money, and their brand and profits are linked to their accuracy |
| Newspaper political bias | Newspapers may have a political bias that influences the accuracy of their content |
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What You'll Learn
- The First Amendment protects political speech, including lies
- Social media platforms are not liable for false content in political ads
- Newspapers can choose what ads to run and are liable for what they print
- Political campaigns are more suspect and are intended to persuade
- Attempts to legislate against political lies have been struck down by courts
The First Amendment protects political speech, including lies
Newspapers and magazines can also choose which ads to run, and when they do so, they accept liability for what they print. There is a high bar for liability, however, thanks to the First Amendment. For instance, in the 1964 U.S. Supreme Court case New York Times Co. v. Sullivan, The New York Times was found not liable for some false information in an ad because the court deemed the false information was an honest mistake protected as free speech.
In Murdock v. Pennsylvania (1943), the Supreme Court stated that "freedom of press, freedom of speech, freedom of religion are in a preferred position". The Court added that a community may not suppress or tax the dissemination of views because they are unpopular, annoying, or distasteful. This would be a complete repudiation of the philosophy of the Bill of Rights. The First Amendment protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one's privacy and control of one's own thoughts.
In National Institute of Family and Life Advocates v. Becerra (2018), the Court ruled that a California law requiring crisis pregnancy centers to post notices about abortions violated those centers' right to free speech. The Court also overruled Abood v. Detroit Board of Education (1977), which had upheld legally obligating public sector employees to pay union dues. Commercial speech is less protected by the First Amendment than political speech and is therefore subject to greater regulation.
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Social media platforms are not liable for false content in political ads
Social media platforms are currently not liable for false content in political ads. This is due to Section 230 of the Communications Decency Act of 1996, which protects social media platforms from being treated as publishers of third-party content. This means that these platforms are not held responsible for user-posted content. However, some critics have questioned this immunity, arguing that social media platforms fail to adequately remove harmful content, such as misinformation or hate speech.
While social media platforms are not liable for false political ads, they are not entirely unregulated in this area. Social media platforms may determine their own policies for political advertisements. For example, many platforms have chosen to ban misleading or false claims that could interfere with voters' abilities to make informed decisions in elections. Additionally, social media platforms are not required to allow all political ads and can distribute them at their discretion.
The issue of liability for false content in political ads has been a topic of debate, with some arguing for greater regulation of social media platforms during elections. Proposals include updating consumer protection laws and broadcast election laws to hold social media companies accountable for their role in political discourse. However, critics argue that making social media platforms the arbiters of political truth is challenging due to the difficulty of establishing political truth.
Ultimately, the candidate is liable for the content of their own political advertisements, regardless of whether they are placed on social media or traditional media platforms. This is because election disclosure requirements mandate that candidates approve their ads, making them responsible for any false or misleading statements.
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Newspapers can choose what ads to run and are liable for what they print
The First Amendment protects political speech, and lying, by itself, does not automatically remove this protection. The U.S. Supreme Court has ruled that the First Amendment must protect speech that is false or misleading to preserve legitimate political discourse. However, this does not apply to commercial advertising, where truth-in-advertising laws mandate that ads be truthful, not misleading, and backed by scientific evidence when appropriate.
Social media platforms are generally not liable for content, including ads, posted by users. They may choose to enact policies banning misleading or false claims, but they are not legally required to do so. Cable news and the internet have been described as a "modern-day Wild West" with little government oversight regarding the truth of their content.
News organizations often tailor their content to specific customer segments, which can skew their accuracy and turn it into affinity with the preconceptions of their target audience. Additionally, political organizations aim to get their candidates elected, so any stories from a campaign or candidate should be viewed with caution.
To avoid the spread of false information, individuals must be vigilant in verifying the accuracy of the information they encounter, as it can have harmful consequences, such as the storming of the Capitol on January 6, 2021.
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Political campaigns are more suspect and are intended to persuade
News organisations typically operate for profit, and their accuracy is part of their brand and, therefore, their profits. However, many news groups tailor their content to particular segments of customers and are more likely to cover stories with a particular perspective. This can skew their accuracy, aligning it with the preconceptions of their target audience.
In the US, the First Amendment protects political speech, and the government generally does not adjudicate what is true or false. Truth in advertising rules do not apply to political ads, and the courts have long protected politicians' ability to lie. Attempts to legislate against lying by politicians have been struck down by the courts. The U.S. Supreme Court has ruled that the First Amendment must protect speech that is false or misleading to avoid chilling legitimate political discourse.
The Federal Communications Commission (FCC) regulates the words that get said over the public's airwaves and prohibits "distortions" from being broadcast. However, the FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights. Social media platforms are also not liable for content, including ads, that users post. Cable channels are subject to liability for the content of any political campaign ads, but there is a high bar for liability due to the First Amendment.
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Attempts to legislate against political lies have been struck down by courts
In the United States, the First Amendment protects political speech, and the government generally cannot regulate the content of candidates' political ads. Lying, in and of itself, does not automatically forfeit protection as free speech. The government does not typically adjudicate what is true or false. While there are truth-in-advertising rules for businesses, these do not apply to political advertisements.
However, this does not mean that politicians can say anything they want without consequence. Defamation laws, for example, prohibit making false statements about someone that harm their reputation. To be considered defamation, the statement must be proven false by clear and convincing evidence and be made with "actual malice," meaning with "knowledge that it was false or with reckless disregard" for the truth.
Despite this, several attempts to legislate against lying by politicians have been struck down by courts. In 2012, the U.S. Supreme Court struck down the Stolen Valor Act of 2005, a federal law that criminalized lying about receiving military honors. The Court ruled that a California water board member couldn't be prosecuted for falsely claiming he had served in the Marines and received the Medal of Honor. Other courts have struck down efforts to regulate false political speech in Ohio, Minnesota, Washington, and Massachusetts.
In addition, social media platforms have enacted policies banning misleading or false claims that could interfere with people's ability to vote in elections. While these platforms are not liable for content, including ads, posted by users, they may choose not to allow political ads or enact rules requiring them to be true.
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Frequently asked questions
In general, the government cannot regulate the content of candidates' political ads. The First Amendment protects political speech, and lying does not automatically lose protection as free speech. However, if the ad includes a lie that is also a type of unprotected speech, such as defamation, the candidate could be held liable.
Newspapers can choose what ads to run. When they choose to run an ad, they accept liability for what they print. However, there is a high bar for liability due to the First Amendment, as seen in the 1964 U.S. Supreme Court case New York Times Co. v. Sullivan, where The New York Times was found not liable for some false information in an ad.
The courts have argued that the antidote to false political statements is "more speech" or "counterspeech", relying on political opponents, the press, or voters to identify and call out campaign lies. Social media platforms have also enacted policies banning misleading or false claims that could interfere with people's ability to vote. Additionally, fact-checking organizations and media literacy initiatives can help individuals identify false information and prevent its spread.
