Just how nasty can political ads get -- and can a candidate really sue someone for libel? We examine a few ads from this campaign cycle.
There’s a reason why political ads dominate every commercial break on TV right now: It’s how campaigns get out their message.
“In many ways, campaigns are a process of collecting money, laundering it through the campaign, and spending it on television,” said Ferrel Guillory, a professor in UNC’s School of Media and Journalism.
And in a swing state like North Carolina, we’re especially bombarded. Candidates heavily target the purple states — states that sway between going blue (Democratic) or red (Republican) in presidential races.
“I was watching TV the other day, and five ads came on in succession,” Guillory said. “Not one of them was effective on its own, but most people will see one or two of them at some point and it will make an impression.”
Political ads tend to be controversial, and attacks are often exchanged between political interests.
But just how nasty can these ads get?
The ads can’t libel a candidate. Brooks Fuller, a Roy H. Park Doctoral Fellow in the journalism school, explained that libel occurs when a person or group purposely publishes an untrue and reputation-harming statement.
(For example, Donald Trump is arguing that the New York Times stories about his alleged sexual assaults on women are libel. Trump says those stories are untrue and harm his reputation.)
Fuller said the First Amendment standards for proving libel give more “breathing space” to people who criticize public figures like politicians. In order for a politician to win a libel suit, they must prove actual malice or a reckless disregard for the truth.
“This is a really high standard and protects lots of criticisms from libel claims,” Fuller said.
Here’s a look at some of the nastier ads this political season.
Roy Cooper on Pat McCrory: Fix This
In this ad, the Roy Cooper campaign critiques Pat McCrory’s administration’s handling of the public education system.
“Gov. McCrory McCrory talks about raising our pay, but he tried to cut education funding to its lowest budget share in over 30 years,” says the teacher.
The citations that are seen in this ad are not legally required, but they are used as a tactic in many political ads to demonstrate authority and transparency, Fuller said.
While PolitiFact only rates the statements made in this ad as half true, the statements can be made because the ad draws conclusions from the truth.
“There is no standard of proof for statements made in political ads,” Fuller said. “There have been state legislative efforts to prevent false statements in political advertisements.”
However, one such law in Ohio was struck down in 2014 because a federal judge ruled it violated First Amendment free speech.
“It raises a lot of constitutional problems if the government were to stand in between a political message and the public,” Fuller said.
Hillary Clinton on Donald Trump: Unity?
In this ad, viewers hear clips from Republican politicians talking about Republican presidential nominee Donald Trump. The ad is meant to question Trump’s ability to unify the Republican party.
All of the critiques about Trump in this ad are opinions of his fitness to represent both the Republican party and the United States. Since opinions cannot be proven as true or false, they’re protected under the First Amendment and won’t hold up in a libel suit.
“Protection of one citizen’s or one official’s assessment of how well somebody performs their official duties is right at the heart of protected First Amendment activity,” Fuller said.
The endorsement at the end is a standard required by the government mostly meant for tracing purposes.
“The public has a right to know who is funding the advertisement,” Fuller said.
Guillory finds these kinds of ads depressing, because they’re all-out attacks on a candidate’s character that aren’t grounded in their public performance.
“However, Trump has opened himself up to these character attack ads simply by what he has said and done publicly,” Guillory said.
National Rifle Association on Hillary Clinton: Hypocrite Hillary Leaves You Defenseless
Advocacy groups also have the right to critique public figures under the First Amendment.
This ad says that Hillary Clinton “doesn’t believe in your right to keep a gun at home for self-defense.” Even though PolitiFact rates this statement as false, the NRA can still interpret and critique Hillary’s stance. Hillary Clinton couldn’t sue the NRA for libel for this ad.
“It’s the same standard regardless of the speaker,” Fuller said.
Guillory knows that people will continue to complain about negative political ads, but he doesn’t think they’re always bad.
“I don’t think people should reject out of hand negative ads,” Guillory said. “They must evaluate if they are truthful and rooted in the dynamics of the office.”
Helpful sources for fact-checking political claims
PolitiFact: Checks candidate statements as well as political ads in North Carolina and the US
The Washington Post: Examines claims made by Clinton and Trump
FactCheck.org: Monitors factual accuracy of statements made by major US political players4 comments