The Straight Talk Express: Yes We Can Have a False Political Advertising Statute

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The American public has grown weary of political advertisements that manipulate the truth and focus on out of context quotes instead of substantive issues. Politicians continue to use false political ads because they are effective and virtually unregulated. Requiring a politician to endorse his own advertisement no longer deters him from defaming his opponent. While the New York Times v. Sullivan actual malice standard for defamation of public officials has been a part of free speech jurisprudence for four decades, the lack of a remedy that redeems the victim and deters future assailants has prevented more politicians from filing suit.

This article reexamines the New York Times v. Sullivan actual malice standard for defamation against a public official in the age of the Internet campaign. First, it provides recent examples of misleading political advertisements that illustrate the need to provide politicians with a timely remedy. Next, it discusses the historical background on defamation as it pertains to public officials and summarizes the regulations of Internet speech that relate to defamation of a public official. It then examines Congress’ recent approach to the regulation of false advertising through campaign finance reforms that indirectly attempt to regulate potentially defamatory campaign ads before demonstrating that the actual malice standard should be retained because: 1) it can be adapted to modern times, 2) it does not violate the rulings of the Court regarding Internet speech or campaign finance, and 3) it adequately protects political speech. Finally, this article proposes the creation of a federal statute that retains the actual malice standard and requires a mandatory retraction to ensure political speech is not chilled, to protect media defendants from ruinous lawsuits, and to give politicians a remedy that will limit damage to their reputation and deter future false ads.

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