Political Campaigns: False Advertising Or Fair Game?

Political campaigns in the US have often been accused of spreading misinformation and making false claims. While the Federal Trade Commission (FTC) is tasked with regulating commercial advertising, it cannot regulate activities protected by the First Amendment, including political speech. As a result, political campaigns and politicians are largely exempt from advertising requirements, and the FTC cannot hold them accountable for false or misleading statements. This has led to a rise in disinformation in political advertising, especially on digital platforms, where targeted advertising allows candidates to disseminate inflammatory or contradictory messages without the same level of scrutiny as traditional media. While cable networks have developed norms around fact-checking political advertisements, the lack of federal regulation means that candidates can make untrue statements with few consequences, raising concerns about the spread of misinformation and its impact on democracy.

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The First Amendment and free speech

The First Amendment to the US Constitution protects political speech, including that made by candidates for office. This means that candidates are generally able to say whatever they want, regardless of whether their statements are true.

As Claudia Haupt, an associate professor of law and political science at Northeastern University, explains, "the core of the First Amendment [...] is protecting political speech." This protection extends to lies, as Haupt further highlights: "Lies are protected in public discourse."

The Federal Trade Commission (FTC) is tasked with regulating commercial advertising and protecting consumers from false advertising by companies. However, political campaigns and politicians are largely exempt from these advertising requirements on the grounds of free speech. The FTC can only regulate practices in commerce and does not have jurisdiction over activities protected by the First Amendment.

Cable networks, such as Fox News or CNN, are not subject to the same strict requirements as broadcasters when it comes to fact-checking political advertisements. While networks can generally not be sued for the political ads they run, candidates can sue the makers of an ad for defamation, although such cases are rare and challenging to prove.

Some states have taken action to address disinformation in political advertising. As of 2014, 27 states prohibited false statements in advertisements, but courts in four of those states have since struck down these laws, citing the First Amendment and arguing that such measures have a "chilling effect" on free speech.

The spread of disinformation, particularly through social media platforms, has highlighted the need for digital platforms to uphold the norms and regulations that traditional media companies adhere to. The Honest Ad Act, introduced by US senators, seeks to include digital platforms in the Federal Election Campaign Act of 1971 to address this issue.

The Federal Trade Commission (FTC)

In the United States, Truth in Advertising laws are administered by the Federal Trade Commission (FTC). The FTC enforces these laws, which require advertisers to tell the truth and back up their claims with reliable, objective evidence. The FTC applies the same standards no matter where an ad appears – in newspapers and magazines, online, in the mail, or on billboards or buses.

The FTC's Division of Advertising Practices (DAP) enforces the nation's truth-in-advertising laws. The DAP uses a variety of tools to protect consumers from misleading claims, including bringing law enforcement actions in federal and administrative courts, issuing warning letters, developing rules and guidance for businesses, advocating effective industry self-regulation, and preparing consumer education materials. The DAP also pursues deceptive conduct by a variety of national advertisers, including broadband providers, online ticket sellers, and online travel sites.

Additionally, the DAP leads the FTC's efforts to stop the deceptive or unfair marketing of tobacco (including e-cigarettes). This includes monitoring and reporting on tobacco marketing practices, reviewing and approving tobacco company labels and ads, and coordinating with state, federal, and international law enforcement agencies, as well as industry self-regulatory groups. The FTC also monitors and reports on the alcohol industry's self-regulation and brings law enforcement actions as needed.

It is important to note that the FTC can only regulate practices in commerce and does not have jurisdiction over activities fully protected by the First Amendment, such as political speech. This is why political campaigns are not covered by the same false advertising laws as commercial entities.

State laws

In the United States, Truth in Advertising laws are administered and enforced by the Federal Trade Commission (FTC). The FTC protects consumers from false advertising by companies through its "Truth in Advertising" standard. However, political campaigns and politicians have been largely exempt from these advertising requirements on the grounds of free speech. This exemption is based on the idea that the core of the First Amendment is protecting political speech, allowing candidates for office to say almost anything, even if it is untrue or outrageous.

Despite this broad protection for political speech, there have been some efforts to regulate false advertising in political campaigns at the state level. As of 2014, 27 states had laws prohibiting false statements in advertisements, although courts in four of those states later struck down these laws as a violation of the First Amendment. For example, in 1998, the Supreme Court of Washington State overturned a 1984 statute that prohibited sponsoring political advertising that the person knew or should have known was false, citing the law's chilling effect on free speech.

In addition to state-level efforts, some cable networks have independently developed norms around fact-checking political advertisements. For instance, CNN has rejected ads from political campaigns, including those of President Trump, due to inaccuracies.

Furthermore, while networks generally cannot be sued for the political ads they run, candidates can sue the creators of an ad for defamation. However, defamation suits are challenging to prove, and it is even more difficult when the person suing is a public figure, especially in the political sphere.

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Defamation suits

Defamation is the communication of a false claim or statement of fact about another person that harms their reputation. To prove defamation, a plaintiff must demonstrate that the defendant made a false and defamatory statement, knew the statement was false, and acted with reckless disregard for the truth or failed to ascertain it. This is especially challenging for public figures, as the First Amendment strongly protects free speech and political discourse. Courts have set a high bar for proving defamation in political cases, requiring plaintiffs to meet an even higher standard of proof than ordinary citizens.

In addition, campaign ads often feature mixed statements of fact and opinion, and opinion statements are generally afforded significant discretion. For example, a court found that listeners would not reasonably interpret an "overtly political radio ad, deliberately framed to secure votes in a heated primary campaign race and plainly aimed at an election opponent" as "an accusation of criminal conduct."

While candidates can sue the makers of an ad for defamation, networks that run political ads generally cannot be sued for defamation by the candidates they feature.

The Honest Ad Act

The Honest Ads Act is a bill that aims to enhance the integrity of American democracy by improving disclosure requirements for online political advertisements. The Act was introduced in response to revelations of foreign interference in the 2016 US election, which exposed loopholes in existing campaign finance laws.

The Act would amend the definition of 'electioneering communication' in the Bipartisan Campaign Reform Act of 2002 to include paid internet and digital advertisements. It would require digital platforms with at least 50,000,000 monthly visitors to maintain a public file of all electioneering communications purchased by a person or group who spends more than $500 total on ads published on their platform. This file would include a digital copy of the advertisement, a description of the target audience, the number of views, publication dates and times, rates charged, and the contact information of the purchaser.

The Act would also require online platforms to make all reasonable efforts to ensure that foreign individuals and entities are not purchasing political advertisements to influence American elections. This includes strengthening the FEC's disclaimer requirements for online ads, providing more transparency for internet users about the source of the content they are viewing. Additionally, the Act would ban foreign nationals from buying online political advertisements, closing a major loophole in campaign finance law.

The Honest Ads Act has gained support from various organizations and experts, including the Campaign Legal Center, the Alliance for Securing Democracy, the Brennan Center for Justice, and major internet companies like Facebook and Twitter. It was introduced in the Senate in May 2019 with bipartisan co-sponsorship and has also been introduced in the House of Representatives.

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