TV stations could not refuse to run Eric Greitens’ political ad showing him with an armed tactical squad in hunt of “Rino” Republicans, as long as he paid for the air time.
No matter how objectionable, defamatory or wrong a federal candidate’s TV ad may be, the Communications Act of 1934 has a “no-censorship no-liability rule”, says Mark Sableman, a partner at Thompson Coburn and media expert.
“The stations can’t censor or refuse to run the ads, even if they’re libelous or otherwise objectionable, but the stations also cannot be liable for having broadcast them,” he added in an email.
Greitens is a Republican candidate for a U.S. Senate seat in Missouri.
Different rules apply to other media. In print, publishers have full discretion about whether to run a political ad, but also have potential liability.
Internet companies are protected from liability by Section 230 of the Communications Decency Act. They also have the right to edit or not run the ad. Facebook decided to take down the ad, while Twitter kept it up while adding a warning. “This Tweet violated the Twitter Rules about abusive behavior. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.”
“I am Eric Greitens, Navy Seal,” Greitens says as the ad begins. “And today we’re going Rino hunting. Shotgun in hand he follows a faceless tactical team as it breaks into an empty house as flashbangs detonate. “Join the MAGA crew. Get a RINO hunting permit. There’s no bagging limit, no tagging limit, and it doesn’t expire until we save our country.”
In reality the Greitens ad never was intended to run on TV as a paid ad, so no station was required to run it. Instead Greitens put it on the Internet and got tons of free publicity, without spending a campaign dollar on air time. Twitter reported 3.7 million views as of Tuesday evening.
Greitens, former governor of Missouri, told KCMO that critics were taking the ad too seriously, adding, “It is entertaining to watch the full outrage of all of the liberal and RINO snowflakes around the country and around the state,” he said. “The people who are most upset by this are the RINOs. They’re the ones who came out right from the beginning and joined forces, as they’ve always done, with the mainstream media to come out and to attack us.”
Greitens’ ad is protected speech under the First Amendment. It falls short of illegal incitement and courts are especially protective of hyperbolic speech.
Greitens wrote on Facebook, “Facebook CENSORED our new ad calling out the weak RINOs. When I get to the US Senate, we are taking on Big Tech.”
He did not address whether his hunting-RINOs ad was appropriate in light of the recent rash of threats of physical violence against politicians and government officials, ranging from low-level election officials to Supreme Court justices.
Greitens continues to lead the polls in the Republican primary.
William H. Freivogel is the publisher of Gateway Journalism Review.