Going To Court To Stop Political Attack Ads

Gene PolicinskiCommentary
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

While the emergence of tea party candidates is getting headlines in this fall’s midterm elections, another trend with free-speech implications has popped up, as well — candidates and supporters going to court, not just the ballot box, to challenge opponents’ ads and claims.

The nation’s founders and courts have provided wide protection for political speech. Generally, the idea has been that vigorous, perhaps caustic, and even erroneous speech (if not malicious or negligent) about candidates and issues is essential to the future of the Republic.

The preferred practice has been to let candidates and supporters slug it out during the campaign in free and open exchanges — and to let voters decide, not jurors.

But in the election season of 2010, candidates seem more willing than ever to take political confrontation to litigation:

  • In Missouri, Rep. Roy Blunt, Republican candidate for U.S. Senate, sent letters to television stations saying his campaign was "prepared to take all necessary action" to block an opponent’s attack ad.
  • In Tennessee, a company sued to block a tea party candidate’s claim in a GOP primary race that her opponent had voted in the state Legislature for budget increases that included a $1 million contract for a firm owned by the opponent’s husband. A court refused to block the ad, but the company has vowed to pursue defamation claims — citing damage to its business interests and saying the campaign ad involves commercial speech, not political rhetoric.
  • In  Pennsylvania, Democratic Rep. Kathy Dahlkemper told four Erie radio stations to pull an anti-abortion group’s ad that she contends was “slanderous, inaccurate and falsifies [her] stance on abortion.” Her attorney said the campaign was “hopeful that the radio stations won’t air the ads and be responsible and honor their (Federal Communications Commission) licenses."
  • In California, Republican gubernatorial candidate Meg Whitman demanded in mid-September that TV stations pull an ad from the California Teachers Association. An attorney for Whitman threatened stations with legal action, writing, “The spot (ad) is a lie. … As you know, your station can be held [liable] for slanderous or libelous statements made by a non-candidate sponsor of political advertising."

It’s that last part of the attorney’s letter on Whitman’s behalf that may be the key to much of this trend in campaign tactics: focusing legal attacks on the “non-candidate sponsor of political advertising.”

The U.S. Supreme Court decision in the Citizens United case this year opened the doors for corporate spending on ads directly in support of or opposition to candidates. By some accounts, the ruling has led to a flood of spending on such ads in many election contests — an estimated $500 million by early October, according to the nonpartisan Center for Public Integrity.

First Amendment advocates tend to view the Supreme Court’s decision to open up corporate spending on campaigns as a victory for free speech, even if it runs counter to public opinion. But the unfolding reaction to outside campaign spending may well be leading to more court fights.

It would be ironic indeed if that high court ruling, intended to promote more discussion, more “robust public debate,” ends up prompting a different scenario: moving some of the election process from the voting booth into the jury room.

Gene Policinski is vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. E-mail: [email protected].