Political advertising is sometimes loose with the truth. Framing an argument by selectively using facts is a tried-and-true strategy of political campaigns. Given the stakes and the passions on every side of the issues, there’s a temptation to sprinkle falsehoods into an ad, sliding into the realm of unlawful defamation. In most cases, freedom of speech makes libel a relatively minor threat for political advertising, but for nonprofits it can nonetheless present a potential drain on financial resources.
What is libel?
Defamation involves speech or written communications that contain demonstrably false information about an individual and that harm that individual in some fashion. There are two categories of defamation: slander captures oral communications, while libel captures information published in visual form. For a 501(c)(4) nonprofit that produces advertising connected to a political cause, libel is a risk worth thinking about.
California law defines libel as “a false and unprivileged publication . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Cal. Civ. Code § 45. In a libel case, a plaintiff could base the injury portion of a libel claim on, among many other things, loss of employment opportunities.
Why libel cases are rare in politics
In the realm of politics, First Amendment free speech rights drastically restrict the ability of most potential plaintiffs to successfully sue for libel. In the 1964 U.S. Supreme Court case of New York Times Co. v. Sullivan, the Court held that a public figure who sues a rival for libel must prove that the statement was made “with ’actual malice’—that is, with knowledge that it false or with reckless disregard of whether it was true or false.” 376 U.S. 254, 280. In practice, this a difficult standard for political figures to meet.
Just because the target of negative advertising may not have much chance of winning a lawsuit doesn’t mean a lawsuit won’t get filed. This is a circumstance where a large, well-funded organization might be less likely to be sued than a small, lean operation. A nonprofit with a slim budget could face a strategic lawsuit designed to force it to spend precious resources defending itself.
The rationale for avoiding libelous statements in a published ad therefore is not necessarily the risk of losing a lawsuit, but the risk of being sued at all. Organizations working in this space must weigh their appetite for this sort of risk as part of their planning.
The Church Law Center can answer your organization’s questions.
The Church Law Center of California counsels 501(c)(4) social welfare organizations and other religious and secular nonprofits. We can guide your organization’s risk management process as it crafts effective advertising in support of its mission. To make an appointment, call us today at (949) 689-0437 or reach out to us through our contact page.