Election Cycle Issues for Newspapers

Election Cycle Issues for Newspapers: Political Advertising and Other Matters

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Political Ads

What is a political ad?

Political ads are paid expressions placed in any mass media, including newspapers which support or oppose any candidate or issue. Most ads pertaining to candidate races are easily recognizable as political ads.  Ads that advocate “approval of an issue” may be less recognizable, but are also considered to be political ads—see below.

What “issue ads” are political ads?

“Issue” means any proposition which is required by the State Constitution, by law or resolution of the Legislature, or by the charter, ordinance, or resolution of any political subdivision of this state to be submitted to the electors for their approval or rejection at an election, or any proposition for which a petition is circulated in order to have such proposition placed on the ballot at any election. 106.011(7). Thus, if an ad argues for or against any proposition that is required by state or local law, ordinance, or resolution to be voted on, it is a political ad.

Ad Disclaimers

What form of disclaimers is required?

The rules are quite extensive and are summarized in Attachment A.

Is the newspaper responsible for absent or incorrect disclaimer?

Newspapers are not responsible for determining which disclaimer goes in the ad, and will not be liable for deficient ads.  That responsibility is with the person placing the ad.  Nevertheless, it is advisable for newspapers to be in a good position to alert advertisers about obvious deficiencies in ads.  This will promote good customer relations and avoid a bad situation in the heat of a political campaign and will help your customers avoid advertiser fines of up to $1000 per “willful” violation.

Payment for Political and Electioneering Communications

What are the Florida rules for political ad rates?

The primary provision is found in section 106.16, F.S., and it is fairly simple. It bars newspapers from charging one candidate for state or county public office  for political advertising in a county at a rate in excess of that charged another political candidate. The clear intent of this statutory provision is to equalize charges for political advertisements so that a candidate would not have a favored advantage over an opponent. Beyond this, there is no requirement as to the amount a newspaper can charge.  Many newspapers charge using rate cards
applicable to any other ad.  Other newspapers have a special political advertising rate on a separate card. Both methods are legal.

Is payment for ads in advance required?

Yes. Florida law requires payment be made “upon final delivery and acceptance of the service,” which means in the case of media services payment is due upon placement of the ad for publication or at least when the ad is actually run, and not afterwards in the form of a payment plan.  See 106.11(4),  Chapter 11 of the Candidate Campaign Treasurer’s Handbook.

Can payment for an ad be made by an ad agency or media consultant as opposed to the candidate or his or her campaign?

Yes. Although the law generally requires the candidate to pay all campaign expenditures through the appointed campaign treasurer of the candidate or political committee, in 2004, the Legislature passed an exception to this general prohibition. Section 106.021(3). The new law exempts payment of expenditures made “indirectly through a treasurer” for goods or services such as “communications media placement or procurement services.”  Based on this language, payment of ads arguably can be paid indirectly by a campaign through a media consultant or an ad agency.  The expenditure must be reported on the campaign treasurer’s report pursuant to section 106.07(4).

Can payment for ads be made by campaign credit card?

Yes. Candidates for statewide office and political committees created to support or oppose any candidate for statewide office or to support or oppose any statewide issue may use credit cards (and debit cards) for payment of political ads.  The cards must be in the name of the candidate or political committee and reflect that it is a campaign account.  Also, the card must expire no later than midnight of the last day of the month of the general elections. section 106.125. Candidates and political committees other than those stated above may not use credit cards.

Can a candidate for a political party position pay for an advertisement using a personal credit card, as opposed to paying by check from a designated campaign bank account?

Yes.  Candidates for political party positions are not included within the definition of “candidate” or “political committee” contained in 106.011 and, therefore, are not subject to the expenditure requirements of that law.

Liability for Political Ads Content

Is a newspaper liable for the content of the political ads they run?

Yes. Newspapers are liable for false and defamatory political ad messages, not just the candidate, the campaign committee, the candidate’s party, or the citizen who places the ad.  If a newspaper publishes the political ad, the paper essentially becomes financially responsible for any false and defamatory content, just as if the paper had originated the copy.

What steps can be taken to lessen liability risk in political ad-taking?

You may want to enter into contracts with candidates and their media buyers that have them hold the newspaper harmless if the paper is sued for libel.

Personnel should also be trained to reduce ad department risk of being sued over taking a false political ads.  Those reviewing ads must be able to recognize libelous content in the ad copy and learn to seek legal advice on deadline, if necessary.  Even when the ad taker is confident about the level of risk presented by an ad, he or she ought to follow a short checklist of liability prevention techniques in screening copy prior to publication.

Here are some goals for the ad taker in political high season suggested by John Bussian Law Firm in Raleigh:

  • Read the copy to divine its worst meaning ( if a lawsuit is filed, all inferences will be resolved, at least initially , in favor of the suing party.)
  • Ask to see source material, and consider asking the advertiser to produce it (especially if serious charges about the subject of a political ad can be found in public record, the  newspaper stands to immunize itself through accurate recounting of the records)
  • Suggest figurative language as a substitute for precise wording of misconduct charges.
  • Remind the advertiser that you won’t take advertising just because other media has done so.
  • Give the copy a hard edit–just as news-side colleagues do with highly charged news reports. (Remember, there is no special privilege to break a story in ad copy that wouldn’t pass muster in the newsroom.)
  • Especially when the copy contains inflammatory charges of misconduct, consider having a lawyer review the copy prior to publication.
  • If necessary, refuse the ad and, if the ad has already been paid for, refund the payment.

Even if the ad follows these guidelines, there is no assurance that your ad copy won’t become the target of a libel suit.  However, odds for having the case dismissed early at the summary judgment stage without enduring the risk and expense of a jury trial will improve.  These preventive steps will work to the paper’s advantage later.


Equal Time Requirements

A candidate for political office recently contacted the newsroom to complain that the newspaper carried too many stories about his opponent and claimed that the paper was obligated under federal law to provide  equal time for all candidates. Is that correct?

No, while there are equal time rules for political candidates that apply to broadcasters, there are no comparable rules relating to print media.  The Fairness Doctrine–an FCC rule requiring airing of contrasting views on subjects–also only applied to broadcasters when it was in effect–it was repealed in 1987.

Election Day Legal Issues

In anticipation of Election Day and in recognition of Florida’s checkered voting past, what are the general issues that may arise in coverage of voting in Florida?

Here are the rules relating to access to election-day public records and the polling place:

Access to Election-Related Public Records

Election records:  Generally, election records are open to public inspection under Florida’s Constitution and Public Records Act.  Ask for the record and require the agency to cite a
statutory exemption by number, if the request is denied. Remember, agencies are entitled to a reasonable amount of time. Supervisor’s of Elections are mandated to perform certain duties w/in a certain amount of time. Post election activity immediately following an elections can be expected to delay response time from what you may be used to when an election has not just taken place.

Access to ballots:  After the election, journalists and the public have the right to inspect ballots and take notes regarding the votes cast.  They are not entitled to copies of the ballots, however, and they may not touch the ballots.  Sections 119.07(5) & 101.572.

Access to names of persons requesting absentee ballots: While candidates and political parties, and even 527 committees, can obtain the list the list of names of persons requesting absentee ballots, the general public, including the newspaper, cannot. Section 101.62(3) says that requests for absentee ballots are exempt and confidential and there is no distinction made between pre- and post-election.  The law says the absentee ballot electronic information updated on a daily basis is confidential and exempt but must be made available to certain specified parties like canvassing boards, elected officials, political parties or candidate.   Jim Rhea at the First Amendment Foundation says “based on this language, the information has the highest level of protection and can only be released to the persons named in the statute, which does not appear to include the media or the public.”

Although the electronic list is generally not available to the public, it is noted that the newspaper can look at (but not touch) the absentee ballots themselves in the custody of the supervisor (as opposed to the list) according to § 101.572.  This is apparently a leftover from the hanging chad era.

Voter registration and voter records: The public has the right to inspect and copy records concerning registration list maintenance programs.  The following information, however, is
confidential and exempt from public disclosure: declinations to register to vote; information relating to the place where a person is registered to vote or where a person updated a voter registration; social security numbers, driver’s license numbers, and Florida identification numbers for voters or applicants.  Section 97.0585. Information is exempt for certain classes-judges, law enforcement, etc.

At Polling Places

The terms of Florida’s statute provide that the only interaction with voters permitted within the 100-foot zone surrounding Florida’s polling places and early voting sites is “exit polling,” a term that is undefined.  The 100-foot zone should be clearly marked at each polling place.

Though journalists may be physically located within the 100-foot zone, journalists’ highest risk of violating this statute involves interaction with voters prior to their voting (most often, when they’re in line-but not when they are actually casting their ballot). Photographing waiting voters within the zone – without interacting with them – is likely legally permissible.  That does not mean that law enforcement and/or Supervisors of Elections will not try to stop such newsgathering within the zone.

Although the statute technically bars questioning exiting voters who have already cast their votes, case law calls into question the constitutionality of prohibiting journalists from asking questions of voters who have already voted within the 100-foot zone.  Journalists are likely legally permitted to ask questions of exiting voters.  Please note that various Supervisors of Elections interpret this statute in various ways – some asserting that questioning is unlawful.  In such circumstances, journalists may be asked to stop questioning exiting voters within the zone – or even arrested.  Journalists should consult with their editors on how to respond in such situations.

Outside of the 100-foot zone, a journalist’s interaction with voters is not be restricted by this statute.

Journalists are NOT allowed in polling places – except to cast their own votes, of course.


Political Activity

Can the newspaper prohibit political activity in the workplace?

Yes, courts have held that free speech rights do not apply to the workplace of private sector employee, and an employer can terminate the employee as long as dismissal complies with employment law.  Employers should consider instituting a written policy that provides direction to employees as to what they can and cannot say and do.  Some employers find that the best way to ensure that the work place is conducive to productivity and free of hostility is to enact a “no solicitation, no distribution” policy, which limits employees from soliciting support or distributing literature about political activities.  Restrictions on use of workplace technology like emails, faxes and pdf files can be prohibited. The employer should notify employees about the effective date and rationale and keep written records of  discipline and behavior that leads to the corrective action, and apply the policy in uniform, even-handed way.

Direct any questions to Sam Morley at FPA. Contact him at smorley@flpress.com or 877-NEWS-LAW.