Campaign Attack Ads: An Ethical Case Study
Update: 3/27/2015 - The below is a hypothetical case study on campaign attack ads, conducted and written for a graduate course in the Manship School, Louisiana State University. George is one of the founders of a fairly new public relations and marketing consulting firm. The firm has begun to branch out into political campaign consulting and has landed its first major client, a candidate for a seat in the House of Representatives from a local district in the general election. The candidate for the other party is a fairly conservative businessman and former clergyman. Some of the main issues in the campaign, as they seem to be developing, deal with the legalization of marijuana for medical use. This has been a continuing issue in the state since the legislature had approved such use, but the law had been overturned in higher court proceedings. Other major issues include reform of health care insurance and federal cutbacks for public health services in general.
A reporter friend contacts George to let him know that one of his sources has discovered that the opponent quietly attends AA (Alcoholics Anonymous) meetings at his church on a regular basis. The group and the church hold information about meetings and attendees as confidential and private. It also appears from other sources that the opponent has been treated for depression, although several years earlier. The reporter believes he is still on medication, however. A week later, the reporter calls to say that he has heard rumors that an adult son of the opposing candidate, by a previous marriage, may be living with another male in a large city in a southern state. He has asked sources to investigate any links between this son and the gay community in the city.
George shares this information with his colleagues working on the Congressional campaign. They are very excited and say these revelations could really help in attacking the credibility and fitness of the opponent. George is not so sure that all or any of these reports are appropriate or ethical.
Should George use any of the information to craft a negative campaign ad?
While attack ads are technically legal, creators of such ads must be careful not to digress into slander and libel. According to U.S. law, slander “involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation.”[1] Attack ads “must be crafted very carefully to avoid accusations of slander of libel, which means they should only present facts which are on public record. However, attack ads are not required to provide a fair or balanced portrayal of those fact.”[2] Care in crafting attack ad messages is especially important when these ads are created by third parties, where the ‘no censorship’ provision for candidate-endorsed ads in public broadcasting does not apply.[3] Broadcasters “can’t censor a ‘use’ by a political candidate (a candidate ad that features his or her recognizable voice or image), and thus the broadcaster is not liable for the content of a candidate's ad.”[4] While this lack of liability does not apply for third party ads, negative third party ads are rarely turned down by broadcasters. The author of Broadcast Law Blog writes:
In most cases, broadcasters are reluctant to draw lines as to when an ad is truthful enough to run on the air and when it is not – instead leaving the debate over the "truth" to the marketplace of ideas. If someone thinks that an ad is untrue, they can buy their own ad and spell out their position on the issue.
Slander and libel laws are upheld differently for public figures such as political candidates. According to the U.S. Supreme Court case New York Times Co. vs. Sullivan:
A State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" - that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 265-292.[5]
In accordance with the NY Times v. Sullivan decision, a public figure plaintiff must show that statements in an attack ad are not only untrue, but were made with “malice.” Liability on the part of broadcasters or third party ad creators is rather difficult to prove in such cases, and thus most third party attack ads are not refused by broadcasters.[6] However, despite the fact that political attack ads are legal and that the statements in such ads are difficult to prove slanderous, many have questioned the ethics of such ads.
1. What advice would you give George about developing messages based on any or all of these pieces of information?
According to Tanya Robertson of Demand Media, negative advertising can be considered ethical if businesses respect social responsibilities and truthfulness: “An unethical negative advertising campaign purposely distorts the truth in an effort to deceive the public.”[7] According to Mark Penn writing in Time magazine, negative ads that focus on something important are good for democracy: “They don’t let politicians off the hook and hold them accountable for their past actions.”[8]
In giving George advice, I would first suggest that the messages only take into account that information that is verifiable and based on truthful evidence. George should be careful with information originating from rumors or hearsay, as basing an attack ad on false information is unethical, and could backfire on George’s client. I would advise George against using the information about the opponent’s son. Not only is this information based on rumors, but using the information for an attack ad might offend the gay community, failing to abide by the standard of social responsibility and respect.
The information about the opponent attending AA meetings might be considered fair game, if this information is publicly available. However, George should probably be careful in using the information about the opponent’s depression and depression medications. The medical status of a politician is legally protected, just as any U.S. citizen as the right to confidential medical records.[9] Alexa Cowen and Lindsey Gross write on politicians and privacy:
The Health Insurance Portability and Accountability Act (HIPAA) prohibits doctors and hospitals from releasing medical records, in most instances, without patient consent. Candidates' medical records can only become public if they release their own information or authorize their doctors to discuss their health with the media (Goldman). The White House has a different approach: “they feel it is ethical to allow reporters to read, but not copy, the medical documents of a politician” (Goldman).
According to Cowen and Gross, despite technically confidential records, the media has in previous instances obtained private medical files that could be used for negative campaigning. Indeed, it may be in the public’s interest to know the medical status of their politicians. But is it ethical to publicize information about a candidate medical records, especially if these records have not been publicly released by the candidate or his physician? Goldman and Tossell wrote in 2004:
While it is accepted that people who run for political office sacrifice some of their privacy rights, we believe that the wholesale disclosure of presidential candidates' medical records is unnecessary and represents too great an invasion of privacy. Borrowing from the Americans with Disabilities Act's guarantee that people with disabilities will not be barred from employment, candidates should not be subject to discrimination on the basis of medical conditions that will not impair their ability to perform the essential functions of the office.[10]
Goldman and Tossell suggest that, ethically, candidates should be able to withhold certain health information from public disclosure, and that candidates must consent to the release of such information before it can be made public. Perhaps George could suggest that his client pressure the opponent to release his medical records concerning his use of antidepressants. Also, if George and his client have reason to believe that the medical status of the opponent might significantly affect the opponent’s ability to perform as a political candidate, George might have reason to pursue this information further. However, while this medical information is legally protected, George and his client have legal and ethical responsibilities to keep the information confidential
2. Should the firm be concerned about whether other independent groups, such as bloggers or 527 groups, pick up and run with any of these reported findings about the other candidate?
In deciding whether or not to use the information, I do not think that the firm should be concerned about whether other independent groups run with the reported findings. In the end, George and his client may still be held responsible for distributing false information, especially if they knew this information was false but still distributed it anyway only because independent groups had already picked up the information. However, if the negative information on the opponent is veritably true and based on factual evidence, for example the evidence that the opponent is attending AA meetings, then George and his client might be justified in using the information if independent bloggers and 527 groups are already using the information. Again, however, I would suggest that George and his client independently access the truthfulness and usefulness of the information, and weigh the ethical considerations of running an ad based on the information
3. The charge of alcoholism could weaken the opponent’s support from his conservative and religious base. By participating in AA, the candidate has, in a somewhat public fashion, admitted to his problem – does that make this information fair game for campaign use?
Of all the information discovered by George and his client, the information about the opponent’s participation in AA meetings seems to be the most the ethically available information for use in a negative campaign. The opponent candidate may technically be acting in public when he attends AA meetings; he may be consenting to have this information publicized when he voluntarily participates in these meetings through his church. Although the candidate’s medical records are private and legally protected, and the meetings themselves may be closed and private, preventing reporters from accessing anything the opponent says during the meetings, the simple fact that the opponent is attending these meetings seems to be fair game for campaign use.
4. Assume that the candidate represented by George has a daughter who does not hide the fact that she is herself gay. If the opponent’s campaign begins to make an issue of that fact, is George’s group justified in developing ads using the new information provided by the reporter friend?
While this situation might make George and his client more willing to use the new information for a negative campaign, the fact that the opponent targeted George’s client’s daughter does not change the fact that George and his client could be held responsible if they distribute “malicious” rumors about the opponent’s son in response. I don’t think that the opposing campaign justifies the use of the information, unless the information can be verified and is based upon real evidence. Perhaps more importantly, for George and his client, the use of the information about the opponent’s son in response to the opponent’s ad might seem vindictive instead of informative. A campaign based upon this information might now backfire on George and his client. I would advise George to use craft a more informative message that targets the opponent’s character and fitness for the political arena, instead of a message that trivially attacks the opponent’s family member. Such a message might be successful in making the opponent’s ad look trivial and uncivil in comparison.
5. If the reporter goes ahead and reports his findings in his newspaper, does that change the ethical equation? If the information is made public through a different, independent medium, is it all fair game for attacks on the opposing candidate?
Again, I do not think that the firm should be concerned about whether other independent media groups run with the reported findings. The reporting of the findings in the newspaper might indeed take the ‘heat’ off of George and his client if they choose to run the ad based on ‘malicious’ or false information. However, I think that George and his client should independently decide whether or not to use the information based upon the truthfulness of the information as well as how informative the information will be to potential voters. If the reporter verifies the fact that the opponent attends AA meetings and makes this information public, George and his client might be justified in using this information. However, if the reporter is illegally distributing the confidential and private medical records of the opponent, George and his client are no more justified in using this information as they would be if the information were not already distributed in the media. However, in their ads, George and his client might be justified in alluding to the media coverage of this information, as long as they do not do so in malice.
Summary
In the end, many research studies show that negative campaign ads do work. Albert Hunt wrote in a recent article in the New York Times:
Campaign strategists for both parties dismiss public criticism. There are innumerable examples that this stuff works and few to the contrary, they say. A study in The American Journal of Political Science last year showed that the more engaged voters, those more likely to vote, are the least offended by negative pitches.
The media often contribute to the negativity of campaigns, rushing to cover negative information once it has been aired in a television campaign ad, for example.[11] However, public opinion polls reveal that Americans feel frustrated by the negative tone of campaign ads of late, preferring political discussion that is civil and respectful.[12] And yet, negative campaigns may be a staple of our democracy. In review a recent review of David Mark’s book “Going Dirty: The Art of Negative Campaigning,” Sunny Freeman writes:
Mark’s implicit conclusion is that negative attacks on political opposition is inherent in democratic political campaigns. Publicizing damaging information about a political rival is an inevitable by-product of a liberal democratic society with a free press and an open marketplace of ideas. Competing for votes in a free market system inevitably breeds campaigns that demonize an opponent for political gain. […] Instead of attempting to regulate negative campaigns, Mark proposes the best solution is to allow attacks and counterattacks to flourish and let the voters decide which are too extreme and which convey relevant information.
Negative campaign ads may always be protected by free speech rights, and they may even lead to a more informed public. However, the crafters of these messages still need to be careful not to overstep legal and ethical standards.
References:
Goldman, Janlori, and Elizabeth I. Tossell. "Presidential Health: Do We Have a Right to Know?"
[1] http://www.expertlaw.com/library/personal_injury/defamation.html
[2] http://www.wisegeek.com/what-are-attack-ads.htm
[3] http://www.broadcastlawblog.com/2012/09/articles/political-broadcasting/political-broadcasting-refresher-part-4-no-censorship-how-can-candidates-get-away-with-those-attack-ads/
[4] http://www.broadcastlawblog.com/articles/political-broadcasting/
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=376&invol=254
[6] http://www.broadcastlawblog.com/2012/10/articles/political-broadcasting/political-broadcasting-refresher-part-5-why-dont-tv-stations-pull-more-superpac-ads-is-there-potential-liability-for-these-ads/#more
[7] http://smallbusiness.chron.com/ethics-negative-advertising-26128.html
[8] http://ideas.time.com/2012/05/23/the-case-for-negative-campaign-ads-2/
[9] http://www.ethicapublishing.com/inconvenientorinvasive/2CH5.pdf
[10] http://www.ihealthbeat.org/perspectives/2004/presidential-health-do-we-have-a-right-to-know.aspx
[11] http://www.nytimes.com/2012/10/15/us/15iht-letter15.html
[12] http://www.globalethics.org/newsline/2012/07/30/negative-campaigning-2/