We were more than a little dismayed to read an Associated Press story earlier this month reporting that the Montana Broadcasters Association (MBA) and the Montana Commissioner of Political Practices were considering the establishment of a board to certify the truth or falsity of political advertisements financed by so-called third-party interests—essentially anyone trying to influence an election who doesn’t work for a specific candidate. After all, regulating the content of political speech hardly seems constitutional.
So it was a relief to hear from both Commissioner of Political Practices Gordon Higgins and MBA President and CEO Greg MacDonald that the AP reporter misconstrued what MacDonald and Higgins were working on: not a system by which the Commissioner’s office would arbitrate the content of advertisements, but rather a plan to collect certifications on which financers would attest that the content of their ads is verifiably truthful.
Broadcasters provided the impetus for the nascent certification system in response to the barrage of threatened libel suits that follow the airing of third-party political advertisements like the National Republican Senatorial Committee’s recent ad charging that Jon Tester is a lousy tipper and last year’s Democratic Party ad touting Sen. Conrad Burns’ ties to disgraced influence-peddler Jack Abramoff.
MBA’s MacDonald says requiring attestations of accuracy would mean “people will start to pay attention to the content of their ads and make sure they are not playing loose with the facts.” If, that is, they perceive the penalties—a $500 fine and/or six months in jail for violating Montana’s prohibition against false swearing—a deterrent.
The clearer advantage of such a system to broadcasters is that a signed statement swearing an ad is true constitutes a defense against potential charges that a broadcaster acted with “actual malice”—the test the U.S. Supreme Court has established for determining whether broadcasters are guilty of libeling a public figure—in airing allegedly untrue ads.
Such insulation, however, would seem likely to induce broadcasters to devote less attention to avoiding broadcasting libelous content, which runs counter to the goal of encouraging political advertisers to take responsibility for what they say.
Still, holding people accountable seems like a laudable goal. Of course, that’s why we have elections—or at least that’s the idea. To the extent that self-certification of third-party ads is accompanied by information that enhances the public’s ability to evaluate the truthfulness of political advertising, such a program could have a public benefit.
Making advertisers simply promise that they’ve told the truth doesn’t do this. If, instead, those promises were to wind up in a publicly accessible place—the Internet, say—along with the archived ads and the evidence for their claims, there’s a case to be made that we’d all gain.