Q: Can people be sued for false political advertising?
A: Targets of false ads rarely sue. Libel law makes it practically impossible for candidates to collect damages, even if they should win.
Because so many TV campaign ads give false or misleading information, can someone file suit for false advertisement?
Strictly speaking, anybody can file a lawsuit over just about anything. Winning a judgment is another matter. In theory, a candidate who is the target of a false and defamatory political ad could have grounds to sue for libel, but that seldom happens and even less often is successful.
The reason is that Supreme Court decisions make it extremely difficult for a public figure – especially anyone running for public office – to win a libel case even if what is said about them is false.
What we said in a Special Report in 2004 bears repeating: "Candidates have a legal right to lie to voters just about as much as they want." There is no federal truth-in-advertising law that applies to political ads, and the very few states that have tried such legislation have had little or no success.
Regarding private lawsuits, the Supreme Court held in the landmark Times v. Sullivan case in 1964 that a public official can’t collect damages for a defamatory statement – even if it is false – unless he or she can prove "that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false." Proving that somebody knew something was false is a very tough thing to do. And a defendant can always claim that he or she believed the false statement to be true, or can show that there was at least a grain of truth to it, and thus claim that there was no "reckless disregard" for the truth.
Besides, it can take years for a libel case to come to trial, and so there would be no hope of getting a court to rule until the election in question was long over. For example, in 1964 the Republican presidential nominee Barry Goldwater sued FACT magazine for what it said in "The Unconscious of a Conservative: A special Issue on the Mind of Barry Goldwater." Two articles accused him of having a severely paranoid personality and being psychologically unfit for the White House. The suit didn’t even come to trial until May 1968, years after Lyndon B. Johnson had won the election. After a 15-day trial Goldwater won $1 in actual damages and $75,000 in punitive damages. Appeals dragged on until January 1970, when the Supreme Court refused to review the award. By that time Richard Nixon was president. So you can see that a libel suit isn’t a very effective means of correcting a false political claim.
For more, see our 2004 Special Report, "There Oughta Be A Law – Or Maybe Not."
U.S. Supreme Court. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Time magazine. "Fact, Fiction, Doubt & Barry," 17 May 1968.
U.S. Supreme Court. Ginzburg v. Goldwater , 396 U.S. 1049 (1970)