With the May primary election approaching, it’s a good time for advertising staffs to review political advertising requirements.
Both federal and state law require that all newspaper political advertising include appropriate disclaimers that identify who paid for the ad and whether the ad was authorized by a particular candidate or candidate’s campaign committee.
A political advertisement is one that expressly advocates the election or defeat of a clearly identified candidate, according to Indiana Code 3-9-3-2.5. Federal law requires disclaimers on all newspaper advertising by political committees.
The wording of the disclaimer depends on whether the political ad was purchased by:
• The candidate or his or her campaign committee.
• A third party, but authorized by a candidate or candidate’s committee.
• A third party, but not authorized by any candidate or candidate’s committee.
If a candidate or candidate’s committee purchases the political ad, the disclaimer should include wording like the following: Paid for by the Sam Jones for Sheriff Committee or Paid for by Sam Jones, candidate for Sheriff.
If the political ad has been authorized by the candidate or his or her committee but paid for by a third party, the disclaimer should include the following: Paid for by the XYZ Committee and authorized by the Sam Jones for Sheriff Committee.
If a third party pays for a political ad that isn’t authorized by a candidate or candidate’s committee, the disclaimer should read as follows: Paid for by the XYZ Committee and not authorized by any candidate or candidate’s committee.
For ads concerning federal elections, such as U.S. Congressional Districts, the disclaimer must be set off in a box in at least 12-point type. It must be “clearly readable,” so there must be enough color contrast between the type and background to meet that standard.
While not required by either state or federal law, HSPA executive director and general counsel Steve Key suggests a newspaper may want to adopt a policy of requiring a name, such as the committee’s treasurer, to be included in the disclaimer.
In the event that the ad might spark a libel lawsuit, the name will allow the plaintiff to sue the committee directly without naming the newspaper as a defendant, Key said. The policy may not be practical for statewide and federal elections where advertising is generated based on the state or federal requirements, but for that level of competition, the policy isn’t as necessary.
“Statewide and federal candidates have the resources or experience to understand what the limits are before libel becomes an issue,” Key said. “It’s the local candidates who are more likely to not seek a lawyer’s advice before publishing libelous charges against their opponents.”
If a newspaper allows a political advertisement to run without the required disclaimers, liability lies with the candidate, committee or third party – not the newspaper. But good customer service dictates that the newspaper alert the person placing the advertisement about the lack of a required disclaimer before the ad runs.
Newspapers have the right to reject an advertisement without the proper disclaimer just as they have the right to reject any advertising they choose under the First Amendment’s freedom of the press statues.
Newspapers can offer discounts for volume political ad purchases in the same manner they offer them to traditional advertisers.
Beware of offering discounts greater than those available to other customers to avoid accusations that the newspaper is making an in-kind political contribution, which would have to be reported in the same fashion as a cash donation by the publisher.
Newspapers also can require payment up front. Campaign committees are known to run up debts beyond their capacity to pay.
Another question that comes up is what to do about attack ads in the last days of the campaign. Most newspapers have established deadlines for attack ads that leave time for the opponent to respond (but not with another attack ad).
For weeklies, this might mean a deadline two weeks ahead of Election Day.
