MINNEAPOLIS (WCCO) — If you put together commercials for cereal or flu medicine, you can’t distort or mislead. But if you’re crafting a political ad, it seems like all bets are off. So, can politicians lie in their campaign commercials?
“Pretty much,” said Steve Bergersen, an attorney focusing on advertising Fredrikson & Byron in Minneapolis. “You cannot deceive people in commercial advertising.”
According to Bergersen, the First Amendment to the U.S. Constitution protects non-commercial speech. But the courts have ruled that regulators may put restrictions on commercial speech.
Political ads are considered “the epitome of non-commercial speech. It’s what drives democracy. It’s what generates discussion, ideas,” said Bergersen.
The courts have essentially argued: If any speech deserves protecting, it’s political speech.
The Federal Election Commission regulates political ads, but it mainly focuses on donations, not on the content of the ads. The Federal Trade Commission regulates commercial advertising. And it goes after ads that are false or deceptive. LifeLock paid $12 million in fines this year; Walgreens paid $6 million.
It is not difficult to prove falsehood when it comes to a claim about a commercial product. But nailing a political ad?
“Determining what’s false and misleading in the political realm is a whole different arena,” said Bergersen.
Minnesota is one of the few states with a law against political ad lies. But the candidate has to know the claim in the ad is false, and that’s a tough standard.
Plus, there’s the practical considerations: By the time a complaint is filed and an investigation gets started, “the election is over,” noted Bergersen.
It’s not like television stations can step in and refuse to air false ads from registered candidates, either, because of the Federal Communications Act.
“That would be censorship of the highest order. If it’s up to the station to determine, I don’t think any of us want that, including you,” said Bergersen.