Q: Is there a rule in Pennsylvania or federal law that restricts last-minute political ads?
A: There is no federal law or regulation that prohibits last-minute political ads in newspapers, on their websites or in digital news products, and the provision of the Pennsylvania Election Code dealing with last-minute political ads was declared unconstitutional and is unenforceable.
There is no federal law that requires notice to opposing parties or places time limits on political print or online advertisements. There are provisions in federal law requiring an opportunity for “equal time” on air for political candidates seeking a federal office, but those rules only apply to broadcasters licensed by the Federal Communications Commission (FCC). Newspapers and online news organizations are not covered by these “equal time” rules. Similarly, the federal “Fairness Doctrine” applied to FCC licensees and sought to prevent broadcasters from using their stations to promote only one perspective. The Fairness Doctrine was formally rescinded in 1987, and it was never applicable to print journalism.
Pennsylvania’s Election Code (Section 1638(b)) contains a provision restricting the placement of certain political advertisements in the last days of an election and requiring notice to the opposing party, but this provision was declared unconstitutional in 1980.
The provision, as written, makes it a criminal offense to violate the statute. However, in Commonwealth v. Wadzinski, 492 Pa. 35, 422 A.2d 124 (1980), the Pennsylvania Supreme Court declared a former version of this section to be unconstitutional. Based on the Wadzinski decision, the Office of the Secretary of the Commonwealth takes the position that Section 1638(b) is unenforceable (see page 28).
News organizations can ‒ and some have ‒ implemented policies that restrict or regulate last-minute political ads, but they are not required to do so by law. If your news organization chooses to implement a policy that restricts or regulates last-minute political ads, it should be applied uniformly to all political advertisers.
As always, this is not intended to be, nor should it be construed as, legal advice. Please consult your news organization’s private attorney or call the PNA Legal Hotline at (717) 703-3080 with questions.