One of them could do us all a great favor by holding broadcasters accountable in a way that We the People cannot...
By Sue Wilson on 2/26/2016, 10:05am PT  

Republican Presidential contenders Donald Trump and Ted Cruz are at war over what they charge to be false political ads against each other. It's one battle in this bizarre and contentious campaign year which could actually benefit us all.

The Cruz campaign has been running a series of attack ads about Trump's position on abortion, which Politifact reviewed and described as "flawed." In response to what he calls Cruz' "lying ads", Trump has threatened to file a suit charging that Cruz, who was born in Canada, may not be eligible for the Presidency.

Meanwhile, a SuperPAC called the American Future Fund ran an attack ad against Cruz calling him "weak" on defense, which the group Fact Check reviewed and found to be "misleading." Cruz' response was to have his attorneys write a sternly worded letter to the TV stations running the ad against him, demanding they pull it, citing FCC public interest obligations and more.

"Because this advertisement makes a flatly false factual claim for which your station is ultimately liable," the Cruz attorneys wrote, "we strongly urge you to exercise your discretion as a licensee to refuse to continue to broadcast this advertisement, and, because it is already airing, immediately pull the advertisement from your rotation."

In this case, the Cruz attorneys are right, at least in regard to the legal issues at stake...

Why is Cruz going after the TV stations, but Trump is going after Cruz personally? Trump can't sue Cruz over a "lying" campaign ad, because there's no law against candidates lying on air. Therefore, he's threatening litigation on the separate issue of Cruz' birthplace. (Whether we like it or not, any Federal candidate who runs their own "I approve this message" ad on TV or radio is free to lie to the public as much as he or she likes. Broadcasters are legally not allowed to vet candidates' ads for fictitious statements, and stations are required to run those false ads over our public airwaves.)

This system works great, of course, for television stations, which are set to rake in an estimated $4.4 billion in political ad sales in 2016. But it's terrible for We the People, who, when making voting decisions, are clearly harmed by political ads which are lying to us, as aired by broadcasters licensed to "serve the public interest."

However, there's a different rule for radio and TV ads paid for by third parties, such as the SuperPACS loathed by Trump and his potential Democratic opponent Bernie Sanders. Broadcasters are not required to air third party sponsored ads and, if they choose to do so, they can be held liable for airing falsehoods. Hence Cruz' legal letter/threat to television stations.

A similar tactic has been tried before. Rep. Jeff Denham (R-CA) filed libel lawsuits against broadcasters for campaign ads which he says lie about him. According to Broadcast Law Blog, in order to prevail, the candidate (or his/her attorney) must first contact the TV or radio station to complain. The station must then fact check the ad, and if determined to be untrue, must pull the ad or risk being held liable for defamation --- just as Cruz' attorneys threatened.

You'd think broadcasters who make most of their giant profits from political ad sales, especially in the wake of Citizens United would be fact checking the ads they serve up to the public for the sake of "serving the public interest." (According to public files posted at the FCC, American Future Fund spent $148,453 to purchase airtime for just that one allegedly misleading ad in the Charleston, SC television market alone.)

How are We the People supposed to know which statements made in ads that air over our publicly-owned airwaves are true or false? Shouldn't political ad fact checking be part of the public interest obligations TV and radio stations sign up for in exchange for their free licenses to broadcast over our airwaves?

Apparently --- legally --- that is too much for We the People to ask.

I've been trying for years to find an attorney willing to sue broadcasters over false third-party ads on behalf of the public, but I've been told over and over again that We the People have no legal standing to file such a lawsuit.

But Ted Cruz is making the case against lying ads, and in his way, so is Donald Trump. They would both, presumably have the standing that We the People, apparently, do not.

So sue, baby, sue! And let's hope all the candidates jump on the bandwagon of holding broadcasters accountable to their public interest obligations. Do it for all of us who are being lied to over airwaves that we all own, but can't seem to do anything about!

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Sue Wilson is a media activist, director of Public Interest Pictures' Broadcast Blues, and a 22 year veteran of broadcast journalism. Her numerous awards include Emmy, AP, RTNDA, and PRNDI for work at CBS, PBS, FOX, and NPR. She is the editor of the media criticism blog, Sue Wilson Reports and founder of the Media Action Center.

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