Here is an ad at the center of Florida’s Amendment 4 situation. Like it or hate it, ads like this are protected speech.
THE LEAD: A federal judge decided that Florida officials can’t threaten TV stations for running ads they don’t like, using language that has me pondering my first tattoo:
Judge Mark Walker blasted state officials in an order issued late Thursday over a letter demanding broadcasters pull the ad, writing that its content is political speech protected by the U.S. Constitution.
“To keep it simple for the State of Florida: it’s the First Amendment, stupid,” Walker wrote in a temporary restraining order released Thursday night.
BACKGROUND: Florida Gov. Ron DeSantis and his administration had threatened broadcast stations that ran ads supporting Amendment 4, which would overturn his executive order that imposed a six-week ban on abortions.
A letter from DeSantis’ health department’s general counsel told the stations it would seek criminal charges against stations if they didn’t pull the ads in 24 hours that “spread lies” about the current ban.
John Wilson, the author of the letter, has since resigned, stating “it has become clear in recent days that I cannot join you on the road that lies before the agency.”
A BRIEF REVIEW OF THE LAW: The argument Ron DeSantis and his crew have made here is that the ads are false, so he has the right to stop them. To borrow a phrase from the judge: That’s not how this works, stupid.
In cases of false commercial advertising, the Federal Trade Commission gets involved upon complaints from the public. The truth-in-advertising laws here and the FTC’s authority relate to demonstrably false or genuinely misleading advertisements related to products, goods and services.
Therefore, when you see an ad that promises you will lose 10 pounds a day on a jelly-donut diet, without the usual small-print caveats about not eating the donuts and making sure to exercise, the FTC can threaten the organization with fines. For example, it recently settled a claim against the makers of Pyrex glass for $88,000, after the company stated many of its imported kitchen items were “made in the U.S.A.”
The FTC, however, doesn’t handle political advertising and in most cases, and neither does the other group that looks into broadcast content of this nature: The Federal Communication Commission. According to its own website, the FCC neither pre-approves or reviews political advertising, nor does it “ensure the accuracy of statements that are made by candidates and issue advertisers.” In fact, the one thing it DOES do in this regard is prohibit the censorship of candidate-sponsored ads.
In short, candidates can lie if they want to. In terms of issue-oriented advertising, the First Amendment provides a wide level of protection for speech on the air waves. This article does a great job of outlining where a few guardrails do exist for the sake of cable news stations and other media outlets, in terms of stopping patently false stuff from going out on their channels.
DOCTOR OF PAPER HOT TAKE: Given the relative randomness of jurisprudence in this country, including judges not understanding how the First Amendment and journalism tends to work, I have to say I was pleasantly surprised that a judge supported free speech in the appropriate way. Whether the ads were pro or con and whether they were true or false isn’t the point. The point is that the law exists for a reason, and when mini-despots decide to take a ham-handed whack at someone’s free speech rights, it’s nice to see those people put in their place.
That said, I’m not entirely thrilled that the law provides literally no mechanism to stop people from lying in a political campaign, nor is there really any recourse for people who are lied about to put a stop to the lying. I’m a big believer in facts, so I’d really like it if politicians told me the truth. (I’m also a big fan of having a full head of hair, but that’s not happening today either.)
Given the way AI has made it so much easier for people to manipulate everything, it’s really scary that not only can people make ads where we can’t tell the truth from fiction, but also to know that the law says the lying part is OK. The FCC is trying to get some sort of transparency law put into place that would require advertisers to disclose the use of AI in campaign ads, but it’s not here yet.
With that in mind, this puts a lot more pressure on fact-checking organizations to ferret out the truth and private sleuths to dig into potential AI fakes. It also requires more of us as citizens to do our own research when we see ads claiming that Donald Trump once killed a unicorn and that Kamala Harris hosted a Tupperware party for MS-13 members who entered the U.S. illegally.
