Balancing truthful political advertising with news organizations’ First Amendment interests

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For Kansas news media, the political campaign season is an opportunity to inform the public by publishing news reports about candidates as well as political advertising. However, a Kansas statute interferes with the media’s freedom to publish political ads on their websites, limiting the media’s ability to inform and threatening their ability to earn revenue and remain financially viable.

The statute, K.S.A. 25-4156, requires that a political advertisement include a disclosure about the ad’s sponsors. The statute is aimed at making political advertisers accountable to the public. However, the statute is problematic, because it imposes criminal liability on one who publishes such an ad without the disclosure. The liability is strict, meaning publishers may be prosecuted even if they were unaware that an ad would violate the law.

Compliance with the statute can be relatively easy if publication is not on the Internet. For example, before printing a political ad in a newspaper, the paper’s staff can check to make sure it includes the required disclosure.

However, advertising to be displayed on a publisher’s website is a different matter. It can be available for display on the website only in a digital form over which the publisher has limited control. As a result, the publisher may not learn that the required disclosure is missing from a political ad until after it has appeared on the paper’s website. The publisher may then be exposed to criminal liability under K.S.A. 25-4156, even though there was no opportunity to prevent the ad from appearing without the required disclosure.

The statute is vulnerable to attack as unconstitutional and needs to be amended to protect Kansas media’s online publishing of political ads.

The problem with statute becomes apparent as programmatic political advertising proliferates. The advertising is programmatic because computers, with specially designed software, now make decisions about buying, selling and placing ads. Programmatic advertising is entirely automated and involves a “‘machine-to-machine transaction,’” according to one advertising professional. As of the beginning of 2015, “[p]lenty of advertisers today are buying digital ads without speaking to a single human at a media company.” Such “buying is growing not only because it makes ad transactions more efficient but because it can make them more effective, as long as the right data is applied.”

One popular service publishers use to sell advertising space programmatically is Google’s DoubleClick for Publishers. Even though DoubleClick allows for “creative preview” of an ad before it appears on the publisher’s website, the DoubleClick user agreement provides that the service is “experimental in nature” and that “Google does not represent or warrant that the Program is reliable, accurate, complete, or otherwise free from defects.” Thus, even if a publisher preforms all reasonable due diligence, that publisher could still face criminal liability. Moreover, it is unclear whether other programmatic advertising services allow for any “creative preview” whatsoever.

Because programmatic advertising is automated and not necessarily subject to preview by publishers, K.S.A. 25-4156 leaves them in an untenable position. They either 1) accept programmatic political advertising without being sure that it includes the required disclosure and consequently risk criminal liability or 2) avoid the risk of liability by declining the advertising, foregoing the revenue they would earn from it and depriving their audience of the information the advertising contains.

Freedom of the press is significantly chilled, because the Kansas statute imposes criminal liability on any news organization without regard for the way programmatic political advertising works. The statute requires that every political ad be “followed by the word ‘advertisement’ or the abbreviation ‘adv.’” along with the “name of the chairperson or treasurer of the political or other organization sponsoring the same or the name of the individual” who paid for the ad. K.S.A. 25-4156(b)(1)(A); K.S.A. 25-4156(b)(2). Thus, even if a Kansas news organization’s contract with a political advertiser requires the disclosures, an advertiser’s breach of contract by failing to include the disclosure would result in strict criminal liability against the news organization.

One solution would be to amend K.S.A. 25-4156 to be consistent with the law in states such as Texas, which impose a civil, not criminal, penalty upon one who publishes an advertisement without disclosure of the source and nature of the ad. Then, if an advertiser were to breach the agreement, the publisher would not face criminal liability. Most importantly, if K.S.A. 25-4156 were so amended, it could become a constitutionally defensible statute and remain in place to protect the public against untruthful political ads.

Although most states have statutes requiring disclosures for political ads published by anyone, including news organizations, the difference between the Kansas law and laws in states such as Texas is the imposition of criminal liability in the event the ad does not comply. The reason other jurisdictions do not impose criminal liability for failing to produce the disclosures may be that such liability constitutes an unconstitutional prior restraint on speech.

The statute is unconstitutional if imposing criminal liability for failing to meet the statute’s disclaimer requirement does not advance a “sufficiently important” governmental interest, and that a criminal penalty does not have a “substantial relation” to that interest. Those same interests would be met by the potential imposition of a civil penalty, making a criminal penalty unnecessary.

Although Kansas courts have not had occasion to review the constitutionality of criminal penalties for failing to meet disclosure requirements, other courts have found civil penalties are sufficient to meet the state’s interest in truthful advertising. “Our reading of the relevant Supreme Court opinions, particularly Smith v. California, suggests that the first amendment does not permit the imposition of criminal sanctions on the basis of strict liability where doing so would seriously chill protected speech.”  U.S. v. U.S. District Court for the Central District of California, L.A., Calif., 858 F.2d 534, 540 (9th Cir., 1988).

The Supreme Court has also found that commercial speech is ordinarily not subject to the same First Amendment protection as non-commercial speech. However, the Court has indicated that the protection may be greater if government regulation of commercial speech threatens a newspaper’s “financial viability.” Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 93 S.Ct. 2553, 2554 (1973). As digital advertising become the norm, there is little doubt that Kansas news organizations’ financial viability would suffer greatly in the face of K.S.A. 25-4156’s constitutionally dubious criminal penalty.

Revising the statute to meet constitutional muster would be simple. Currently, K.S.A. 25-4156(b)(2) provides that “Corrupt political advertising of a state or local office is a class C misdemeanor.” Drawing from the comparable Texas statute, Texas Election Code Chapter 15, Sec. 255.001(e), the subsection could be amended to remove the criminal penalty and provides as follows:

“Corrupt political advertising of a state or local office results in liability to the state for a civil penalty in an amount determined by the Kansas Governmental Ethics Commission not to exceed $500.”

Although the Ethics Commission could set the amount of the civil penalty at less than $500, that amount represents the maximum fine that could be imposed in connection with a conviction for a Class C misdemeanor. Most importantly, this language would continue to protect the public from political advertising by undisclosed sponsors.

Alternatively, Kansas could follow the federal government’s model outlined in Section 315(a) of the Communications Act, which according to the Federal Communications Commission “applies only to over-the-air broadcasts by radio and television stations and not to Internet streams.” In that event, the legislature could amend K.S.A. 25-4156 to expressly exempt political ads on the Internet from disclosure requirements.

Because the current criminal penalty is unnecessary, constitutionally defective, and chills press freedom, the Legislature should remove it and amend K.S.A. 25-4156(b)(2) in the upcoming legislative session.