Ohio Adopts Flawed Political Advertising Rules

With the mid-term election of 2010 over and a new year, I thought we would have a bit of quiet time in political broadcasting regulation and we could turn to more mundane matters: a new license renewal cycle, public file and such. No such luck!

In a rush to react to the Citizens United case, several states are considering legislation or rules to limit its reach. In the last week of 2010, the Ohio Secretary of State did that by issuing a new set of rules. In what may be a harbinger of things to come, on December 27th, the first day back at work after the Christmas break -- and as she prepared to leave office -- Ohio Secretary of State Jennifer Brunner announced new permanent rules to directly address the impact of the "Citizens United" case in Ohio. The rules apply to political advertising by a corporation, nonprofit corporation, or labor organization that uses its funds or property to finance messages that advocate the election or defeat of an identified candidate or candidates for nomination or election that is not coordinated with the candidate or the candidate's committee.

Among the provisions, the Ohio rules require clear and conspicuous disclosures within the advertising that (1) clearly indicates that the communication or public political advertising is not authorized by the candidate or candidates, and (2) clearly identifies the corporation, nonprofit corporation, or labor organization that has paid for the communication or public political advertising. The disclosure must follow specific disclosure requirements identifying the organizations, an officer and its web address.

The disclosure requirements are somewhat different for radio and television. Television stations are required to include the residence or business address of the officer of the sponsoring organization. While TV disclosure must be "in a clear and conspicuous manner," the rules do not provide specific for guidance on meeting that standard. Radio stations are required to keep the address on file and divulge it to any person upon request for a period of at least six months.

In addition to the disclosure requirements, the new rules expressly prohibit broadcast stations from broadcasting a political communication paid for by a corporation, nonprofit corporation or labor organization if the communication does not contain the required disclosures.

The Secretary of State issued a press release stating that, when these rules are violated, the Secretary of State can pursue violations through means such as subpoenas, investigations and referral of complaints to the Ohio Elections Commission.

Most likely, all of the disclosure requirements are sustainable and would survive legal challenge.

However, the prohibition on broadcasting stations might be overturned if challenged.

In 1983, in the case of KVUE v Margaret Moore, in her capacity as County Attorney for Travis County, Texas, television station KVUE challenged a Texas statute prescribing the rates which radio and television stations could charge political advertisers and requiring sponsors of such advertising to identify themselves. The Fifth Circuit Court of Appeals held that the sponsorship identification requirement in the Texas statute was preempted for federal candidates or committees, but was valid to the extent it applied to candidates for nonfederal officers and campaigns that did not involve federal issues. It also ruled that the sponsorship identification requirement did not violate the First Amendment.

The court reasoned that a state law that conflicts with a federal law is invalid under the supremacy clause of the Constitution if Congress has preempted the area the state law seeks to regulate. However, the Court held that Congress had not so pervasively regulated the sponsorship identification rules with Section 317 of the Communications Act and so the additional Texas requirements (such as adding an address for the political advertiser) supplemented but did not conflict with the Federal scheme and so was permitted for state candidates.

Here, however, we needn't look to the effect on federal vs. state candidates. The new Ohio rules do not conflict with the federal candidate advertising disclosures since they only apply to organizations rather than to messages authorized by candidates or their committees. Therefore, under KVUE, the disclosure regulations should withstand a legal challenge.

The problem, however, lies in the direct prohibition on a station's broadcast when a message does not contain the required disclosures. Instead of imposing a fine or other consequence for such a broadcast, the Secretary of State made the broadcasting station the enforcer of the rule by prohibiting the speech, and thus imposes a prior restraint on the speaker. At least since the 1931 case of Near v. Minnesota, government-required prior restraints on speech are deemed unconstitutional, except in extremely limited circumstances such as national security issues. And the "Pentagon Papers" case (New York Times Co. v. United States) taught that the government's expressed concern for national security is not always sufficient justification for a prior restraint.

Under FCC rules, non-compliance with the sponsorship identification requirement is dealt with after the fact, by sanctions that include admonishments and fines. Repeated violations might even result in problems at license renewal time. The same approach is taken to political candidate advertising where Section 315 of the Communications Act prevents broadcaster censorship of the candidate advertising. However, in that situation, the Commission permits the station to add the required disclosure onto candidate advertising, even if it requires superimposing or voicing over a part of the candidate ad itself.

With respect to organization-sponsored, non-candidate advertising, there is no comparable no-censorship requirement. The broadcaster is empowered to censor the ad, is not required to accept it in the first place, and may set its own conditions and restrictions on the content of the advertising it chooses to accept. However, the government has a heavy burden when it seeks to prevent a broadcaster from publishing any message it otherwise chooses to broadcast.

Ohio would be hard-pressed to make that case in connection with the messages it seeks to regulate here, particularly in light of the Supreme Court ruling in Citizens United, the very case the Ohio Secretary of State seeks to limit with these rules. Ohio might have been wiser to follow the candidate advertising sponsorship disclosure remedy created by the FCC and requiring only that the broadcaster supply the missing disclosure. That remedy would stand a better chance of surviving judicial challenge under the principles of the KVUE case, at least for state candidates, but this attempt at prior restraint will have a difficult legal road if challenged judicially.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.