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In political advertising, there are few rules

Impersonation, other tactics are fair game

POSTED: April 14, 2014 12:44 a.m.

With some hotly contested races in this year’s election, including for the U.S. Senate and governor, the onslaught of political campaign advertising is just beginning.

While many wish these advertisements would share a candidate’s viewpoints on key issues, there are few rules and regulations in the field of campaign advertising — if any.

“The thing about these ads is that they are considered political speech and are generally given the highest level of First Amendment protection,” said Carl Cavalli, a political science professor at the University of North Georgia. “Some speech can be limited. Some speech can be actionable; you can’t lie in a court of law, for example. But the courts have generally said political speech trumps everything.”

Cavalli recalled a 1980 presidential candidate from an alternative party who took to the radio airwaves to get his campaign points across. The candidate, Barry Commoner of the Citizens Party, caught attention by repeating profanity at the beginning of his ad.

While radio stations usually have to remove profanity or risk heavy fines from the Federal Communications Commission, Commoner’s ad ran with no punishment.

While it’s illegal to impersonate a public personality for commercial profit, in the political world, it’s fair game.
“It would be a very slippery thing ... to try and prosecute the notion that somebody looks like someone else,” Cavalli said.

Gainesville attorney John Breakfield referred to a 1988 Supreme Court case when the Rev. Jerry Falwell sued adult magazine publisher Larry Flynt after Flynt printed a parody advertisement featuring the famous pastor.

The Supreme Court’s ruling said Falwell’s claim of emotional distress was invalid, due to his status as a public figure and that “reasonable people” would recognize the ad as parody.

“The fact that Rev. Falwell was a public figure meant that the parody advertisement was protected speech,” Breakfield said.

It is different when it’s for commercial profit; Breakfield pointed to another case in the 1980s involving Bette Midler and the Ford Motor Co.

The car company hired someone to impersonate Midler’s voice in a commercial but did nothing to make it clear it wasn’t Midler.

“The likely intent was to impersonate her so the general public would believe that there was a Ford product endorsement,” Breakfield explained. “(But) selling Fords was not a political type of speech nor was Bette Midler a political figure.”

So there are few things completely off the table of what can be said in political campaign ads, though the 2002 Bipartisan Campaign Reform Act did somewhat address the issue of candidates outright lying about their opponents. Referred to as the ‘stand by your ad’ provision, it requires candidates to approve messages paid for by their campaigns.

“Before that, with a lot of these candidates, their campaigns were running these horribly negative ads,” Cavalli said. “And when the candidates were asked about it, they said ‘I had nothing to do with it. I didn’t know; it was my staff.’

“The attempt there was to try ... to make candidates responsible for their ads, in maybe the hopes they would be a little more positive.”

However, groups supporting a politician can still purchase advertising without express approval by the candidate, and some would argue requiring approval has done little to dissuade seat-seekers from hitting below the belt.

“Many campaigns have learned in the last one to two decades ... there’s a type of ad known as a contrast ad,” Cavalli said. “It’s kind of half-negative, half-positive. So you will see, in one ad, the typical grainy, black-and-white, slowed down footage of your classic negative ad along with the sort of warm colors and patriotic, arousing music that’s supposed to boost that particular candidate.”

And with the Supreme Court’s recent ruling to remove certain limits on federal campaign contributions, expect to see even more political advertisements in the future; especially since research has shown they are effective.

“Even though a lot of people say they don’t like negative ads, there is a lot of evidence that negative ads do what they want to do,” Cavalli said. “There are studies that have shown, for example, that even when we say we don’t like negative ads, negative ads will drive up turnout for that particular candidate.”


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