Can a candidate be sued for a false political ad?
QThere is so much misinformation out there. Seems like anything goes. Can one candidate sue the other candidate for libel?
R.K., Calabasas
APolitical ads are considered political speech, for which there are First Amendment protections. The Federal Communications Commission oversees campaign ads. In addition, the FCC has issued rules for political programming, such as making sure qualified candidates get equal time and disclosing the sponsorship of an ad; however, that does not translate into fact-checking.
Libel is a form of defamation — that which is printed, written or legible — whereas slander is oral, verbal. It can be challenging to pursue defamation claims, libel or slander, given the fundamental right of free speech. It becomes even more difficult when it is a public figure, who has less protection because that person has thrust him or herself into the public eye.
The elements that must be established for a libel claim are: (a) a false statement of fact concerning the person, (b) made either with knowledge of its falsity (or the person should have had knowledge), (c) which is disseminated, and (d) the subject of the statement suffers damages. Because of judicial concern about causing a chill on expression, there is a bit of breathing space that protects hyperbole, and even untrue statements are deemed inevitable in free debate.
Bottomline, the short answer to your question is yes, a false political ad can be the subject of a libel claim, but succeeding and recovering damages is going to take work, and will likely mean defeating several available defenses.
QWhy do political add end with: “I am (state the name of person), and I approve of this ad”? D.G., Carson
AIn 2002, the Bipartisan Campaign Reform Act was passed, as was the Stand By Your Ad provision. It is mandatory that an individual running for federal office stamp “I approve this message” as part of his or her campaign commercials. The objective is to create disincentive for candidates to engage in underhanded tactics, only to then say, “Well, I deny involvement in that ad.”
The Federal Election Commission is specific about how the wording is to appear. For example, it must come at the end of the ad. But should the candidate not make the statement, then it is typical that the party (or entity) responsible will be identified.
QCan you go to prison for a campaign law violation?
J.M., El Segundo
AThe short answer is yes, and it can also include a fine. There are several crimes that come into focus, such as knowingly filing a false campaign disclosure form, mail fraud, wire fraud, money laundering and tax evasion.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.