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Published October 09 2012

Political ads: If it’s mostly true, that’s good enough

FARGO – For most every accusation made in a political advertisement, there is a cry for the accuser to take it back.

Rare is the attack ad that doesn’t elicit denials and calls to set the record straight. Rarer still is the ad that actually gets pulled from the airwaves – usually over a detail, not the message itself.

And it was a landmark Supreme Court case involving WDAY Radio and a former North Dakota senator that gave politicians everywhere much of their ability to point fingers over the air unhindered.

Wayne Kranzler, chief executive of Bismarck-based KK Bold, said the reason most attack ads stand up is simple: the unflattering claims in question are true – or at least true enough.

“Every one of these claims has some kernel of truth in it,” said Kranzler, whose firm handles advertising for many North Dakota Democrats.

Pat Finken of Odney Advertising agrees, but he said that seldom stops candidates under fire from denouncing ads.

“They’re going to say it’s not true,” said Finken, whose firm handles ad campaigns for many state Republicans. “That’s your stock response to all of these.”

He said today’s attack ads, which are vetted by advertising agencies and regulated by the Federal Communications Commission, are actually far more accurate than ads of campaigns past.

“In the early days of North Dakota, candidates would run things that were blatantly false. They would just make it up and run ads about it,” he said, ranging from unsavory personal attacks to accusations of disloyalty.

He said those practices were likely the impetus for a state law that bars false or misleading political advertising. False ads can be subject to slander and libel laws.

But all of those remedies are rare, he said, because “unless it’s blatantly false, it would be hard to enforce.”

That doesn’t discourage campaigns from rattling their sabers. KK Bold’s Kranzler said it’s standard practice for campaigns to send threatening letters to television stations or to one another about ads they don’t like.

“It’s mainly just a nuisance thing, brinksmanship back and forth,” he said.

Kranzler said some political ad firms now send documentation of an ad’s claims to broadcasters to head off complaints from the opposition, though the practice isn’t as common in North Dakota as it is elsewhere.

Jack McDonald, a Bismarck attorney who specializes in media law and counsels many broadcasters, said it is far more common for an ad to be dinged for details or technical reasons – a disclaimer that runs too small or too short, an imprecise choice of words – than for content.

A recent ad from a Democratic political action committee that attacks U.S. Rep. Rick Berg, for instance, was challenged for accuracy by Berg’s U.S. Senate campaign.

One television station moved to pull the spot from the airwaves Monday, and the PAC produced an amended version Tuesday.

The Berg campaign said the ad was false on a number of counts. But the amended ad changed just a few words and delivered an identical message.

In August, a Republican-leaning PAC had to amend its own ad attacking Berg’s opponent, Heidi Heitkamp.

“It’s usually one statement or one fact or a number is wrong,” McDonald said.

In the case of the recently amended Democratic PAC ad, “the issue was just two words,” he said – the distinction between a real estate license that said “employed by” and one that said “associated with.”

McDonald said campaigns have wide latitude to make claims against one another because courts are loath to limit political speech and because it is difficult to prove libel against a public official.

“There’s a great deal of leeway given to what is the truth in these things,” he said.

Most of the skirmishes take place over PAC advertisements because candidates themselves can say just about anything they like without broadcasters intervening, McDonald said.

That standard dates back to an incident in which William Langer, the former North Dakota governor and U.S. Senator, went on WDAY Radio and called the state farmers union “a bunch of Communists,” McDonald said.

Langer’s statements touched off a legal battle that culminated in a 1959 U.S. Supreme Court decision absolving broadcasters from liability for statements made by candidates.

As the election draws nearer, McDonald fields more and more calls from broadcasters – perhaps three or four a week – seeking advice on contested ads.

He likened the back-and-forth on ads to “trash talk on a football field” between campaign lawyers.

“If they think they can send out a letter and get an ad pulled, they’ve got a little victory,” he said. “This is part of the game.”

Readers can reach Forum reporter Marino Eccher at (701) 241-5502