It's almost time for the primary elections of 2002. That's good news and bad news, isn't it? No one minds the revenue these ads generate. But the headaches ... Well, that's another matter.

Political speech is the kind of speech most fervently protected by the First Amendment. The notion that the free flow of ideas is crucial, particularly in the context of political speech, led the United States Supreme Court to decide the famous New York Times v. Sullivan case. That case involved a political campaign, and was the first time that the Supreme Court articulated different standards of proof in defamation cases depending upon whether the plaintiff is a public official/public figure or private individual.

Incumbent office holders are public officials, of course, and candidates for office are public figures. That means that both the press and the citizenry have a lot of latitude in their commentary on the election process or the relative merits of candidates. We all know, though, that we can't let down our guard completely. When those political ads start pouring in soon, remember that it is still possible to defame a public official or public figure.

For example, you may recall the case Russell County Judge/Executive Terril Flanagan brought against The Times Journal. After an election, Flanagan sued the newspaper over three editorials critical of Flanagan's positions on controversial issues. The $1 million jury verdict against the newspaper was reversed on appeal to the Supreme Court. Vindication like that is sweet but, at the end of the day, the process and the time it takes to reach that vindication are costly and disruptive. If you can avoid it with some prepublication scrutiny, why not? And you can.

Some of the political ads you have shared with your Hotline attorneys are "slick," obviously prepared by professional ad agencies or PR firms. Others look more homemade, some even handwritten and full of grammatical errors and misspellings. And, of course, there's everything in between. All of these ads, no matter what level of sophistication, require your careful scrutiny before publication.

One of the reasons for this has to do with the nature of elections. Candidates generally feel very strongly about their campaigns and their stands on the issues. In many cases, when they compose their ads, they express their feelings passionately, sometimes even intemperately. They rarely mince words when referring to the opponents.

So what are some of the things to look for as you preview these ads?

Pay attention to the accusations leveled by a challenger against his incumbent opponent. It's perfectly legitimate for him to criticize the incumbent's policies in office as being ineffective or wrong-headed. It can be over the line, however, for him to accuse the incumbent of embezzling or other types of malfeasance.

Question careless wording of a candidate's accusations against her opponent. For example, consider this sentence: "I have shown the money he has had to run the office you have given him for seven years and I want him to tell you how much of that money he and his family have personally taken out of that office during that time." The sentence is ambiguous, but certainly could suggest to some readers that money has inappropriately found its way into the pockets of the incumbent and his family members. When you ask that question, you may find out that's exactly what the challenger meant. Or you may find out that he is criticizing the fact that the incumbent hired several members of his own family for salaried positions. This kind of nepotism is a perfectly legitimate criticism of an elected official. But the criticism needs to be stated clearly.

Watch for stray, negative references to third parties. Even though this is political speech concerning a campaign, statements in the ad that defame a non-candidate can make big trouble for you. For example, sometimes mention of a candidate's family members creeps into an ad. In an ad discussing spending county money on a drug rehabilitation center, there was a sentence something like this: "I know at least one of your incumbent's family members would benefit personally from a rehabilitation program." That reference needs a lot of exploring. If that incumbent has a small family, the statement might defame all of them. Even if there have been rumors that the council member's teenage daughter has a prescription drug problem, she is not the candidate. She is a private individual and she has privacy rights. That statement may not subject you to defamation if she truly has the drug problem, but it could very well give her a claim for invasion of privacy.

"Cartoon" ads can create problems. They can also be perfectly legitimate - and right on target - political commentary. Look at the message created by the graphic and the wording combined. What is it saying about the advertiser's opponent? If it's accusing him of something that is criminal or otherwise unlawful, beware. If it is criticizing his record, you're in much safer waters.

Don't forget letters to the editor submitted by candidates or on behalf of candidates. Statements made about opponents or others in those letters need to be scrutinized in the same way.

Don't forget ads which criticize a group of elected officials, such as the entire city council or the mayor and chief of police. A disgruntled former employee may write in advocating the ouster of one or more such incumbents. How would you handle a statement like this? "I was let go because I was willing to stand up, question, and challenge 'the good old boy ways' and the illegal, immoral, and unethical practices around me." Even though the ad doesn't name the city council members individually, chances are the city council is a small enough group that the law would consider this a defamatory reference to each of the members. That means any of them could file a libel suit about it.

There doesn't have to be a candidate involved. Issue ads, such as local option wet/dry referenda, can give rise to some pretty wild ads. Look for negative references to identifiable individuals or small groups of people. Check them out carefully. On the other hand, here's an ad that doesn't create legal heartburn: "Support your local bootlegger. Vote no March 14."

Consider the ad as a whole. One ad's headline in an issue referendum was "Help Fight Judicial Corruption." No one can argue with the premise there. But a few paragraphs into the ad was a specific reference, although not by name, to the judges in three particular counties. Read carefully to see if any reasonable reader of your paper could interpret this ad to be accusing the judges in those three counties (a pretty small group) of being corrupt.

If you follow the general rule of thumb of treating political ads with the same level of scrutiny you would give your investigative journalism, you are on the right track. Ask lots of questions.

In most cases, your questions will lead to language changes which will take care of potential legal problems. Only rarely have your Hotline attorney recommended completely rejecting a political ad.