As Political Season is underway from California to Maine, it might be a useful time to review what the law says about Political Speech. Over the past 200 years, courts have decided that the best answer to questions of political speech is even more political speech.
Any discussion of political speech must begin with the First Amendment, which grants all Americans the right to free speech without government intrusion. Even though there are limitations, there have been few successful attempts to block or silence political speech. This has even included cases where the attacked politician threatens to sue to take down a billboard. Usually such an action fails unless the billboard advertising in question attacks the individual in an obscene & personal manner, such as discussing a candidate’s health, personal interests or family. Even though a recent case in Maine noted that “Politics is like a contact sport and candidates should expect to get hit”, there are still rules against hitting below the belt.
In cases where the government wants to take down an advertisement, it must meet the following two part test:
1. The reason the government wants to take it down must be ‘content neutral’ which means that the content of the advertisement must play no role in why the government wants it removed.
2. Second that the purpose must further a substantial government interest. While there is some discussion as to its meaning it normally applies to a core responsibility of government (e.g. public safety or protecting of the rights of the citizens). This is a very difficult test to meet, thus ensuring it is removed only under the rarest of circumstances.
While it is not a federal limitation, nearly every state requires that any political advertisement note who is funding the ad in question. This is why you hear and/or see something akin to “this was paid for by the Campaign for Proposition X” on every political advertisement. This is strictly enforced as well, so be sure there is a clearly defined author.
Political advertising is still a field buoyed with passion and strong opinions which can be problematic. However with minimal common sense applied, advertisers can feel comfortable on a legal basis with posting political ads in the Out of Home market.