Presidential Ads and the Legality of Lying
By Justin Miller | Jan 06, 2016
As presidential campaigns enter offensive mode leading up to the Iowa caucus, candidates—as well as their personal super PACs and supportive dark-money nonprofits—are starting to launch their respective ad blitzes. And not surprisingly, many of them feature fast and loose interpretations of facts.
The presidential election is an open race with over a dozen Republican contenders—a few of whom running for office for the first time—all trying to capture the news cycle with some sensational headline. “There seems to be more whoppers [this election] given all those factors,” says Eugene Kiely, director of FactCheck.org. (Here’s a detailed account of all the political whoppers so far.)
For instance, Donald Trump released a misleading ad on Monday that used aerial footage of people streaming across Morocco’s border, though the ad seemed to imply that that it was Mexico’s border.
And late last month, Ted Cruz’s campaign released an ad that took a direct shot at Republican rival Marco Rubio’s involvement in bipartisan immigration reform. “Their misguided [Gang of Eight immigration] plan would have given President Obama the authority to admit Syrian refugees, including ISIS terrorists. That’s just wrong.”
That talking point had already been debunked by political fact-checkers when Cruz first tested it, but that didn’t stop his campaign from using it in an ad. Glenn Kessler, for The Washington Post’s Fact Checker, promptly gave the assertion a “Four Pinocchio” rating, saying, “In this ad, Cruz has taken a ridiculous claim and brought it to new heights of absurdity.”
As Cruz’s dig at Rubio has been shown to be false, is there anything that legally keeps candidates from lying in political ads? There are strict truth-in-advertising laws enforced for commercial ads. However, freedom-of-speech protections allow politicians to lie in advertisements without consequence. In fact, as FactCheck.org has explained, the Federal Communications Act even requires a broadcaster to run political ads uncensored—even if the station believes the information is untruthful. Broadcasters are free to reject any ads from outside political groups for any reason, though that is highly unlikely given the astronomical ad rates they can charge outside groups like the single-candidate super PACs that are dropping millions on ad buys.
But individual candidates’ lies are uniquely protected. Candidates’ freedom of speech is put first and foremost while the burden of sorting out fact from fiction falls on the voters. So, barring some new constitutional interpretation of free speech, fact-checking groups like FactCheck.org, Politifact, and the Post’s Fact Checker are pretty much the only things that serve as enforcement against political falsehoods on the airwaves.
Though some research has shown this to be effective in keeping candidates honest, the GOP primary doesn’t seem to adhere to any of the traditional rules of politics. Getting called out on blatant lies isn’t hurting candidates’ campaigns—and in the case of Donald Trump, Ben Carson, and now Ted Cruz, lies seem to lead to better polling.