Political Ads -- When To Spike And When Not To

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Cablevision says it can’t spike a disputed political ad; Comcast says it can’t run a disputed political ad. How can that be? Doesn’t the law dictate one approach or the other? 

Actually, like so many things in life, the answer is: It depends.

First, the facts, as reported by media outlets Newsday and BeyondChron.org on Oct. 16 and 15, respectively. 

Newsday (owned by Cablevision, in case that matters), based in Nassau County, N.Y., reported:

Citing the Federal Communications Act, Cablevision attorneys will deny a request by an attorney for the Nassau Democratic Party to pull a Republican-sponsored campaign ad attacking state Sen. Craig Johnson.

Attorney Steven Schlesinger sent a "cease and desist" letter to Cablevision’s general counsel late Tuesday, arguing that the ad, which ties Johnson — a lawyer at his firm — to [a] pension-abuse scandal is slanderous and contains false statements.

Late yesterday, a Cablevision spokesman said: "Under federal law, we are barred from removing this political advertisement." He said they’d send a letter to Schlesinger.

The ad says, "Craig Johnson’s law firm collected millions in legal fees from local schools, then tried to funnel taxpayer-funded pensions to lawyers who didn’t earn them." Schlesinger wrote in the letter that the ad "makes defamatory and material misstatements . . . and are false, damaging to Johnson, his candidacy and reputation and constitute libel and slander."

Meanwhile, in San Francisco, the blog BeyondChron.org reported:

District 3—the most expensive campaign in San Francisco—just got even more costly, as the SF Realtors dumped $83,000 into a cable TV ad buy attacking candidate David Chiu. Broadcast on ESPN, TNT, Comedy Central and during MSNBC’s Countdown, the ad accuses Chiu, D1 candidate Eric Mar and D11 candidate John Avalos of being Chris Daly’s “hand-picked puppets” who support “legalizing prostitution” and “banning JROTC.”

But Chiu strongly opposes Proposition K (which would decriminalize prostitution), having voted against it at the Democratic Central Committee.

“These false ads are particularly outrageous because I am a former prosecutor, neighborhood leader and community court judge who fought for years to reduce crime,” said Chiu—who yesterday filed a formal complaint against the Realtors and Comcast Cable.

Section 1.163.5 of the SF Campaign and Governmental Conduct Code prohibits campaign ads that intentionally or recklessly cite a false endorsement—and it’s now up to the Ethics Commission to enforce it. D11 candidate John Avalos likewise opposes Prop K.

What’s the difference between the two situations and the cable operators’ approach?

The difference is: who paid for the ad.

The ad on Cablevision was paid for by Friends of Barbara Donno, the Republican opponent to state Sen. Craig Johnson. Federal law bars broadcasters from censoring or refusing to air political advertisements from legally qualified candidates, “even if the candidate makes libelous or scandalous charges,” according to Answers.com.

(A lawyer familiar with the statutes told me the same thing but, because of ties to cable companies involved in such issues, requested anonymity.)

The Comcast case, on the other hand, involved a third party, a realtors group. In such a case, Comcast could be found liable if it continued to broadcast an ad it found to make be false claims, especially after being told to cease and desist, I am told.

In fact, I am told the realtors submitted an alternative ad that doesn’t repeat the legalized prostitution claim but does repeat the claim that candidate David Chiu opposed Junior ROTC (military education courses that the city’s board of education, in 2006, voted to ban from city schools).

P.S. Steven Schlesinger, the lawyer who sent the cease-and-desist letter on behalf of New York state Sen. Craig Johnson, told me this afternoon he realized the law prevented Cablevision from censoring the ad or taking it off the air.

He said he sent the cease-and-desist letter to Cablevision primarily to get news coverage of his contention that the ad was libelous.

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