Obama campaign criticized for strong-arming TV stations

1969 free speech protest at Berkeley

As the presidential election moves into its final weeks, the right-wing blogosphere is accusing legal eagles in the Obama campaign of quashing free speech in two separate attempts to fight anti-Obama advertising.

In one instance, Obama’s legal team is accused of intimidating local TV stations. In another, a Midwestern “truth squad” of pro-Obama lawyers is reportedly threatening critics who put out political advertisements that contain what they call deceptive claims.

According to Michigan legal scholars, the right-wing bloggers are correct on the first story. They are almost certainly wrong on the second.

TV stations can play ads that are factually incorrect

The first allegation of intimidation came in response to a letter that Obama campaign general counsel Bob Bauer sent to a number of TV station managers on Sept. 23. The letter told the station managers, all in the swing state of Pennsylvania, that their stations could be held liable and possibly lose their licenses if they aired a certain political ad produced by the National Rifle Association. The ad in question asserted that Obama favored a ban on hunting rifles and shotguns used for hunting. Here is the video of that commercial:

It’s a claim that, according to FactCheck.org, is grossly false. Scholar David Kopel, on the other hand, says that FactCheck.org is wrong on some things.

The letter received by station managers from the Obama campaign states:

Unlike federal candidates, independent organizations do not have a “right to command the use of broadcast facilities.” Because you need not air this advertisement, your station bears responsibility for its content when you do grant access.

Moreover, you have a duty “to protect the public from false, misleading or deceptive advertising.” Failure to prevent the airing of “false and misleading advertising” may be “probative of an underlying abdication of licensee responsibility.” (citations removed)

In response to the letter, the NRA issued a press release decrying it as an attempt to intimidate the media.

“Those strong arm tactics may work in Chicago, but not in Pennsylvania and Ohio,” the statement said.

There have so far been no reports of any TV station that received the letter refusing to air the ad.

Glenn Reynolds at Instapundit, a leading conservative blogger, called the letter an example of “thuggishness” and an example of the Obama campaign’s “brazen efforts to suppress free speech on political grounds.”

Dan Ray, a constitutional law professor at Cooley Law School, told Michigan Messenger that such threats of regulatory retaliation are both bad politics and bad law. He notes that the courts have set an extremely high standard for holding a media outlet responsible for the truth or falsity of political advertisements submitted to them. Every election cycle brings allegations of dishonest ads by both campaigns, yet neither the Federal Elections Commission (FEC) nor the Federal Communications Commission (FCC) have ever, to his knowledge, attempted to hold a TV station responsible for airing a deceptive political ad:

I respect Senator Obama and his campaign’s general counsel Mr. Bauer, but I’m afraid they’ve missed the mark here. Surely, both of them must know that neither the FCC nor the FEC would seriously consider acting on this matter.

He also says that it is highly unlikely that the courts would allow such actions under the First Amendment:

Likewise, there is nothing actionable here in a court case. The First Amendment presumes that the remedy for false or misleading speech is counter-speech. Again, Senator Obama – himself a former constitutional law teacher – knows this.

Douglas Laycock, a First Amendment expert at the University of Michigan Law School, agrees:

We have had campaign lies for a long time, and no defamation judgments that I’m aware of, and few suits. I dimly remember one in Arizona a few years ago; the court scrambled to stay out of a judgment better left to the voters.

The danger here, Ray notes, is that both the FEC and FCC are run by political appointees. If either agency had the power to punish either those who put out deceptive campaign ads or the media outlets that circulate them, he says, “it is virtually inevitable that such authority would be abused. The party that controls the executive branch and thus both agencies would be almost certain to come down on ads that were unfavorable to their party and tread lightly on ads that were unfavorable to their opponents. The result would be politically motivated investigations that would threaten both freedom of speech and freedom of the press through arbitrary enforcement.”

Coming soon: The Truth about the Obama Truth Squad.