[EL] Stolen Valor and False Speech

Thu Feb 23 08:44:11 PST 2012

Re the question of false speech, listers may find this of interest:

Ohio Attorney General DeWine questions constitutionality of state false statements law in court:

 http://www.campaignfreedom.org/2012/02/20/ohio-attorney-general-questions-constitutionality-of-state-false-statements-law/

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, February 23, 2012 11:09 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 2/23/12

False Campaign Speech and the First Amendment: A Hint from the Stolen Valor Oral Argument<http://electionlawblog.org/?p=30407>
Posted on February 23, 2012 8:06 am<http://electionlawblog.org/?p=30407> by Rick Hasen<http://electionlawblog.org/?author=3>

Courts have divided on the constitutionality of various laws punishing false campaign speech.  The “Campaigns” chapter of the Election Law casebook<http://www.cap-press.com/books/1800> discusses these cases—I will soon be at work on revising it for the next edition<http://electionlawblog.org/?p=29009>.

So I was intrigued when I read the following in Adam Liptak’s report<http://www.nytimes.com/2012/02/23/us/stolen-valor-act-argued-before-supreme-court.html?_r=1&ref=todayspaper> on the Supreme Court oral argument in the Stolen Valor case: “The hardest hypothetical question for the justices seemed to concern state laws that make it a crime for politicians to lie in some settings. Mr. Verrilli said such laws might run afoul of the First Amendment because of their potential to chill truthful speech for fear of prosecution.”  If the eventual opinion in this case reflects whats in the transcript, it suggests that many of these laws may face new constitutional challenges.

Here’s the transcript,<http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-210.pdf> and here is the first relevant exchange, with Justice Kagan:

JUSTICE KAGAN: General, what about these State statutes — there are more of them than I thought that there would be — that say no demonstrable falsehoods by a political candidate in a political race, and prohibit demonstrable falsehoods by political candidates? How would your analysis apply to those? Would they come out the other end as constitutional?

GENERAL VERRILLI: I think that those kinds of statutes are going to have a lot harder time getting through the Court’s “breathing space” analysis because the context in which they arise is one that would create a more significant risk of chill

-JUSTICE KAGAN: Well, suppose it says demonstrable falsehoods about yourself

– GENERAL VERRILLI: I think -

JUSTICE KAGAN: — just about your qualifications, about what you’ve done in your life, your — you know, whether you have a Medal of Honor, whether you’ve been in military service, whether you’ve been to college. So any demonstrable statement that a candidate, political candidate, makes about himself.

GENERAL VERRILLI: Yeah. I think under the Court’s “breathing space” analysis, because of the political candidate context, those statutes are going to pose a particular risk of chill, that this statute does not pose because this is a statute about verifiable factual falsehoods.

JUSTICE KAGAN: I guess I don’t understand why it would be more chilling in the one case than in the other. They are the same kind of statement. And one knows the same sorts of things about oneself.

GENERAL VERRILLI: Well, I think the idea would be, in a situation like that one, the government’s power and authority is being trained specifically on the political process and statements in the political process, and this is — this is quite different. This is a statute that says -

JUSTICE KAGAN: Well, I assume that that would be in the case of the State statutes because the State feels that it has a specially important interest in maintaining the political sphere free of lies.

GENERAL VERRILLI: I guess the chilling effect seems to me, at least, to be materially different than in a situation like this one, where what we’re talking about is a very specific pinpoint thing, one thing: Have you been awarded a military honor or not? And a statement that is about yourself only, not about somebody else, and is supported by a quite strong particularized interest in ensuring the integrity of the military honor.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30407&title=False%20Campaign%20Speech%20and%20the%20First%20Amendment%3A%20A%20Hint%20from%20the%20Stolen%20Valor%20Oral%20Argument&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
“Rep. Joel Kleefisch allegedly caught voting for absent member”<http://electionlawblog.org/?p=30404>
Posted on February 23, 2012 7:52 am<http://electionlawblog.org/?p=30404> by Rick Hasen<http://electionlawblog.org/?author=3>

More news<http://www.620wtmj.com/news/local/140096183.html> from Madison (via Political Wire<http://politicalwire.com/archives/2012/02/23/lawmaker_caught_voting_for_absent_member.html>).

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30404&title=%E2%80%9CRep.%20Joel%20Kleefisch%20allegedly%20caught%20voting%20for%20absent%20member%E2%80%9D&description=>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27> | Comments Off
“Texas donors have given more to Super PACs than any other state”<http://electionlawblog.org/?p=30401>
Posted on February 23, 2012 7:49 am<http://electionlawblog.org/?p=30401> by Rick Hasen<http://electionlawblog.org/?author=3>

The Houston Chronicle reports<http://blog.chron.com/txpotomac/2012/02/texas-donors-have-given-more-to-super-pacs-than-any-other-state/>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30401&title=%E2%80%9CTexas%20donors%20have%20given%20more%20to%20Super%20PACs%20than%20any%20other%20state%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Recall Petitions Invalidated Because Church Improperly Promoted Them”<http://electionlawblog.org/?p=30398>
Posted on February 23, 2012 7:47 am<http://electionlawblog.org/?p=30398> by Rick Hasen<http://electionlawblog.org/?author=3>

This item<http://religionclause.blogspot.com/2012/02/recall-petitions-invalidated-because.html> appears at the Religion Clause blog.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30398&title=%E2%80%9CRecall%20Petitions%20Invalidated%20Because%20Church%20Improperly%20Promoted%20Them%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, recall elections<http://electionlawblog.org/?cat=11> | Comments Off
“Madison voters turned away at polls for lacking photo ID”<http://electionlawblog.org/?p=30395>
Posted on February 23, 2012 7:45 am<http://electionlawblog.org/?p=30395> by Rick Hasen<http://electionlawblog.org/?author=3>

See here.<http://tinyurl.com/7qma9wz>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30395&title=%E2%80%9CMadison%20voters%20turned%20away%20at%20polls%20for%20lacking%20photo%20ID%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“WISCONSIN SUED OVER RACIALLY DISCRIMINATORY VOTER LAW”<http://electionlawblog.org/?p=30258>
Posted on February 23, 2012 7:45 am<http://electionlawblog.org/?p=30258> by Rick Hasen<http://electionlawblog.org/?author=3>

The following press release arrived via email:

WISCONSIN SUED OVER RACIALLY DISCRIMINATORY VOTER LAW

FIRST SUIT TO SPECIFICALLY CHARGE RACIAL DISCRIMINATION

 78 PERCENT OF YOUNG BLACK MEN COULD BE BARRED FROM THE POLLS

 Milwaukee, WI –   Advancement Project, joined by the League of Young Voters and the Milwaukee Area Labor Council, will file the first lawsuit based on a claim of racial discrimination against Wisconsin Governor Scott Walker and members of the Government Accountability Board charging that a newly enacted restrictive voter identification law specifically discriminates against African American and Latino voters.

 The lawsuit, to be filed Thursday February 23, challenges Wisconsin Act 23 under Section 2 of the Voting Rights Act, which prohibits the institution of any electoral procedures that deny or abridge the rights of citizens to vote on account of race or color.

 “This law is a part of the largest legislative effort to turn back the clock on voting rights in our nation in over a century and shows how essential the Voting Rights Act is to allow all Americans their right to vote,” states Advancement Project co director Judith Browne Dianis, one of the nation’s leading civil rights litigators. “If this bill is allowed to stand it will undermine the basic fabric of our nation’s democracy.”

Studies in Wisconsin have confirmed that racial minorities, especially African American and Latino voters, are far less likely to have a Wisconsin-issued ID, finding that roughly half of the state’s African Americans and Latinos lack a valid driver’s license.  Specifically, a 2005 study determined that 55% of Black males and 46% of Hispanic males – as compared with only 16% of white males – lack a driver’s license.  Among females, 49% of African Americans and 59% of Latinas lacked a driver’s license as compared to 17% of Whites.

 When age and race are considered together, the disparities become far more pronounced: an astounding 78% of African-American males (as compared with 36% of White males) aged 18-24 lack a driver’s license, and 66% of African-American females (as compared with 25% of White females) aged 18-24 lack a driver’s license.  The study also found a disparate impact on Latino voters:  57% of young Latino males age 18-24 lack a driver’s license, as compared to 36% of White males age 18-24.

 One of the lead plaintiffs is Bettye Jones, 77, who was born at home in Tennessee and had no birth certificate filed of her birth. She has voted in every election since 1956 and advocated as a civil rights activist for the Voting Rights Act.  Despite being a registered voter, and having a valid and current ID from another state, she will not be allowed to vote. She has tried in vain to get a voter ID and will be disenfranchised in April’s primary elections as a result.

 Wisconsin’s law, the strictest voter identification law in the nation, requires citizens to present limited forms of current, government-issued photo identification before receiving a ballot.  Commonly held forms of identification like state or federal employee IDs, veterans’ cards, most college and university identification cards, and out-of-state or expired driver’s licenses are not allowed.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30258&title=%E2%80%9CWISCONSIN%20SUED%20OVER%20RACIALLY%20DISCRIMINATORY%20VOTER%20LAW%E2%80%9D&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Jon Huntsman Flirting with Americans Elect Bid?<http://electionlawblog.org/?p=30392>
Posted on February 23, 2012 7:43 am<http://electionlawblog.org/?p=30392> by Rick Hasen<http://electionlawblog.org/?author=3>

Note the “duopoly<http://www.politico.com/blogs/burns-haberman/2012/02/huntsman-im-not-a-surrogate-for-anybody-115311.html>” comment (via Ken Vogel)<https://twitter.com/#%21/kenvogel/status/172697756698284032>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30392&title=Jon%20Huntsman%20Flirting%20with%20Americans%20Elect%20Bid%3F&description=>
Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47> | Comments Off
Will Foster Friess Play in the Senate Super PAC Game?<http://electionlawblog.org/?p=30389>
Posted on February 22, 2012 9:38 pm<http://electionlawblog.org/?p=30389> by Rick Hasen<http://electionlawblog.org/?author=3>

Could be<http://www.tnr.com/article/politics/magazine/100503/rick-santorum-billionaire-donor-foster-friess?passthru=MTk1ZjI2OTEzN2EwNWM4MzBhYjk4NmMwNjQ0MzA3OWY>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30389&title=Will%20Foster%20Friess%20Play%20in%20the%20Senate%20Super%20PAC%20Game%3F&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“The Influence Industry: Romney’s record with small donors shows enthusiasm gap”<http://electionlawblog.org/?p=30386>
Posted on February 22, 2012 8:27 pm<http://electionlawblog.org/?p=30386> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports<http://www.washingtonpost.com/politics/the-influence-industry-romneys-record-with-small-donors-shows-enthusiasm-gap/2012/02/22/gIQAgNBIUR_story.html>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30386&title=%E2%80%9CThe%20Influence%20Industry%3A%20Romney%E2%80%99s%20record%20with%20small%20donors%20shows%20enthusiasm%20gap%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Voter citizenship rule advances in Kansas”<http://electionlawblog.org/?p=30383>
Posted on February 22, 2012 8:24 pm<http://electionlawblog.org/?p=30383> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest from Topeka<http://www.kansascity.com/2012/02/22/3446050/voter-citizenship-rule-advances.html>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30383&title=%E2%80%9CVoter%20citizenship%20rule%20advances%20in%20Kansas%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“Few problems reported with Wisconsin’s new voter ID requirement”<http://electionlawblog.org/?p=30381>
Posted on February 22, 2012 8:22 pm<http://electionlawblog.org/?p=30381> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports<http://www.twincities.com/wisconsin/ci_20018242>. Not<http://loyalopposition.blogs.nytimes.com/2012/02/21/will-voter-id-laws-disenfranchise-democratic-voters/> a surprise<http://electionlawblog.org/?p=30177>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30381&title=%E2%80%9CFew%20problems%20reported%20with%20Wisconsin%E2%80%99s%20new%20voter%20ID%20requirement%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“Is there really a chance that the Supreme Court might reconsider Citizens United?”<http://electionlawblog.org/?p=30377>
Posted on February 22, 2012 7:20 pm<http://electionlawblog.org/?p=30377> by Rick Hasen<http://electionlawblog.org/?author=3>

Do-Over Season<http://opinionator.blogs.nytimes.com/2012/02/22/do-over-season/>, Linda Greenhouse’s latest Opnionator column for the NYT.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30377&title=%E2%80%9CIs%20there%20really%20a%20chance%20that%20the%20Supreme%20Court%20might%20reconsider%20Citizens%20United%3F%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“‘Super PACs’ leaders profit from lack of oversight”<http://electionlawblog.org/?p=30373>
Posted on February 22, 2012 6:58 pm<http://electionlawblog.org/?p=30373> by Rick Hasen<http://electionlawblog.org/?author=3>

Super PAC President: Nice work if you can get it.<http://www.latimes.com/news/nationworld/nation/la-na-superpac-spending-20120223,0,2670939.story>

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30373&title=%E2%80%9C%E2%80%98Super%20PACs%E2%80%99%20leaders%20profit%20from%20lack%20of%20oversight%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Gingrich campaign warned 2nd time for financial dealings”<http://electionlawblog.org/?p=30371>
Posted on February 22, 2012 6:57 pm<http://electionlawblog.org/?p=30371> by Rick Hasen<http://electionlawblog.org/?author=3>

The Washington Times reports<http://www.washingtontimes.com/news/2012/feb/22/gingrich-campaign-warned-2nd-time-for-financial-de/?page=1>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30371&title=%E2%80%9CGingrich%20campaign%20warned%202nd%20time%20for%20financial%20dealings%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Sen. Sanders on Rachel Maddow Show on Claims of GOP Voter Suppression<http://electionlawblog.org/?p=30368>
Posted on February 22, 2012 4:25 pm<http://electionlawblog.org/?p=30368> by Rick Hasen<http://electionlawblog.org/?author=3>

See here<http://www.youtube.com/watch?v=R9n4rfce-2Q&feature=uploademail>.  GAO will be asked to determine how much voter fraud there is.

The Voting Wars<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr> heat up.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30368&title=Sen.%20Sanders%20on%20Rachel%20Maddow%20Show%20on%20Claims%20of%20GOP%20Voter%20Suppression&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60> | Comments Off
Want to Know Which For Profit Businesses are Contributing to Super PACs?<http://electionlawblog.org/?p=30366>
Posted on February 22, 2012 4:23 pm<http://electionlawblog.org/?p=30366> by Rick Hasen<http://electionlawblog.org/?author=3>

Check this out <http://bit.ly/wUupqP> from U.S. Pirg and Demos.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30366&title=Want%20to%20Know%20Which%20For%20Profit%20Businesses%20are%20Contributing%20to%20Super%20PACs%3F&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Chamber Gets Back in the Game”<http://electionlawblog.org/?p=30363>
Posted on February 22, 2012 1:48 pm<http://electionlawblog.org/?p=30363> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<http://www.politico.com/news/stories/0212/73166.html>: “America’s political giant has quickened its walk to a run, as the U.S. Chamber of Commerce has pumped more than $3.04 million into national-level electioneering communications during the past two weeks, federal records indicate.”

I was just telling a reporter to watch the c6s, c4s & labor unions. Super PACs are so 2011<http://electionlawblog.org/?p=28973>.

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30363&title=%E2%80%9CChamber%20Gets%20Back%20in%20the%20Game%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Michigan Democratic Party encourages crossover voting in GOP presidential primary”<http://electionlawblog.org/?p=30361>
Posted on February 22, 2012 1:31 pm<http://electionlawblog.org/?p=30361> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix<http://www.washingtonpost.com/blogs/the-fix/post/michigan-democratic-party-encourages-crossover-voting-in-gop-presidential-primary/2012/02/22/gIQA1qjoTR_blog.html>: “Operation Chaos in Michigan? Again? The Michigan Democratic Party sent an e-mail to supporters Wednesday encouraging them to take part in the state’s Republican presidential primary on Tuesday.”

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D30361&title=%E2%80%9CMichigan%20Democratic%20Party%20encourages%20crossover%20voting%20in%20GOP%20presidential%20primary%E2%80%9D&description=>
Posted in chicanery<http://electionlawblog.org/?cat=12>, political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32> | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120223/174a7f14/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1520 bytes
Desc: share_save_171_16.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120223/174a7f14/attachment.png>