There is an expression that gets used in the Talmud to praise one’s teacher that goes: “My Rabbi is like wine and I am like vinegar,” whereupon the Rabbi actually doing the talking quotes some superior wisdom from his teacher.
When it comes to FCC rules governing political advertising, Andrew Jay Schwartzman is like wine and I am like vinegar. Andy knows this stuff backward and forward. So after my recent blog post on Facebook political advertising, Andy sent me a very nice note generally complimenting me on my blog post (always appreciated), but pointing out a bunch of things I either got wrong or could have said more clearly. As Andy observed in his email to me, they don’t actually impact the substance. But in the spirit of transparency, admitting error, and generally preventing the spread of misinformation, I am going to list them out here (a la Emily Ruins Adam Ruins Everything) and correct them in the actual post.
List of my goofs below . . . .
As I noted above, none of these impacts the substance of the blog post.
Section 315 applies directly to cable systems and DBS. I had written that the FCC applied Section 315 to cable systems through its “ancillary authority.” As Andy pointed out, Section 315(c) defines “broadcast station” for Section 315 purposes to include “community antenna television service,” the old name for cable television. I was also unclear on Direct Broadcast Satellite (DBS) and implied that was a Commission rule under Title III. Section 335 (47 U.S.C. 335(a)) required the FCC to apply Section 312(a)(7) and Section 315 to DBS. So the statute applies directly to that service as well.
It’s not clear Trump Meets the FCC Definition of Qualified Federal Candidate. The FCC defines “qualified federal candidate” for purposed of the political advertising rules at 47 C.F.R. 73.1940. For primary purposes, the candidate must be on the ballot or do activities “commonly associated with political campaigning” in at least 10 states to be considered a national candidate. I haven’t kept track of how many states have eliminated their Republican primaries, or in how many states Trump has made campaign speeches or done fundraisers for his campaign. I suspect he has met the 10-state test, but this statement should be qualified just in case.
Some clarification on application of the rules to local broadcast stations. I didn’t state this as clearly as I could have stated it. When it comes to non-federal races (those not covered by Section 312(a)(7)), a broadcaster can decide on the basis of any individual race whether or not to take ads. So a broadcaster can decide to take ads for the local race for governor but not for the local race for state AG. However, once a local broadcaster takes an advertisement from any candidate in a specific non-federal race, it must take a an advertisement from all candidates in the race “without the power of censorship.”
I also was unclear on the ability to demand a particular time slot under Section 312(a)(7). A federal candidate can demand a general time slot (e.g., prime time) but not a specific time (e.g., 8:30 p.m.).
Unlike platforms, program networks can get sued for liable. Finally, as Andy pointed out to me, there is a factor which pushes programers not subject to Section 312(a)(7) and Section 315 to avoid obviously false and defamatory advertising. Because they are not required to carry them by law, they are subject to liability as publishers for broadcasting advertisements that violate the NY Times v. Sullivan standard (i.e., acting with “malice,” either knowledge that the statement is false and defamatory or with reckless disregard for the truth). Facebook (and other interactive platforms) have Section 230, which removes this concern.
It seems to me this last enhances the argument that where Congress has not made the deliberate policy choice to immunize the publication of false statements as part of direct candidate advertising by imposing a legal obligation to carry them “without censorship,” then the publisher should refuse advertisements that are either false or in reckless disregard of the truth. After all, Congress should strike the balance. Requiring a non-common carrier distributor of programming or publisher of advertising to pass on specific advertising as if it were a common carrier is the exception rather than the rule. Congress made the judgment about local broadcast stations (and local cable systems and local DBS advertising), and did not apply the same rule to national programming. A more nuanced reading of Congressional intent would therefore indicate that the better course for a national (indeed, international) advertising platform is to reject advertisements that would violate the NY Times v. Sullivan test rather than to permit them as “direct candidate speech.”
All of which still gets us back to the need for Congress to actually set the standards here. As I proposed last time, we have a number of options available. It is appalling that even such common sense, bipartisan legislation as the Honest Ads Act continues to languish. Hearings to roast Mark Zuckerberg are no substitute for Congress actually doing its job and passing actual, enforceable laws that protect the integrity of our elections.
Stay tuned . . .