The broadcast industry’s regulator, the Federal Communications Commission, has also traditionally taken a hands-off approach to deceptions in political ads. The commission has long refused to direct stations to remove political ads on the basis of alleged falsehoods, saying that it cannot be an arbiter of the accuracy of political claims.

The FCC set its precedent in response to a 1972 request by California Gov. Ronald Reagan, who asked the regulator to tell broadcasters to pull down ads by a public employees union that allegedly made fraudulent claims about The Gipper.

“Dear Governor Reagan,” wrote the FCC, “With respect to allegations of false and misleading statements regarding controversial issues of public importance, whether in paid time or otherwise, the Commission believes that the public will ultimately be best informed on public issues through ‘robust, wide-open’ debate.”

What does all this mean for journalists, and for the broadcasting companies that are the primary conduit for political advertising? If, as seems possible, existing laws against false political claims are rolled back rather than expanded, the media’s role—as both arbiter and factchecker—could become even more central.

Broadcasters are required by law to air ads from candidates in federal races. But, as groups like Free Press and Annenberg’s noted throughout the last election cycle, stations may reject or demand changes in ads from outside groups. None of the legal questions now in the air affect stations’ obligation to vet ads by super PACs and nonprofits before they air, or their prerogative to reject false claims at their own discretion.

Though stations do review the claims in third-party ads before they air, most take a permissive attitude toward all but the most outlandish truth-bending claims—whether out of a desire not to act as a censor, an unwillingness to become embroiled in a feud with ad buyers, an eagerness for campaign cash, or some combination of the three. Unless that changes, that means that the demand for on-air—and in print, and online—factchecking will only continue to grow.

Political journalists may find that the campaign deceptions that they grappled with throughout the elections are deemed to be protected by the same free speech rights that they depend upon to report. In election seasons to come—and the “permanent campaigns” between them—they should be ready to exercise these rights in abundance to keep the public from being misled.


Sasha Chavkin covers political money and influence for CJR's United States Project, our politics and policy desk. He has written for ProPublica, the Center for Public Integrity, and The New York World. Follow him on Twitter @sashachavkin.