Legal Hotline: Political Ads – Last Minute

Legal Hotline: Political Ads – Last Minute

PNA Legal Hotline

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, and the provision of the Pennsylvania Election Code dealing with last-minute political ads was declared unconstitutional and is therefore unenforceable.

There is no federal law that requires notice to opposing parties or places time limits on political print advertisements.  There have been provisions in federal law requiring “equal time” for political candidates seeking a federal office, but these rules only applied to broadcasters with an FCC license. Newspapers and online news media organizations were not covered by these rules and they can accept federal election ads at any time.

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 of the law 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 newspaper’s private attorney or the Legal Hotline at (717) 703-3080 with questions.