[EL] Fact-checking

Mon Oct 1 01:18:04 PDT 2012

Perhaps I invoked Alvarez for too strong a proposition. But note that Justice Alito’s dissent in Alvarez relies on the difficulties of countering false speech with other speech. There was no effective way to publicize a list of holders of medals that could accurately be linked up with the people who hold them. There are too many common names, and the law precludes release of the most likely identifiers (social security numbers and birthdates of medal winners). By contrast, many of the false statements that may be made in political campaigns may be effectively countered with other speech. The “stolen honor” of incumbency is easy to counter by other speech, except perhaps when the claim of incumbency is made on the eve of the election; but even then, counter-speech during the election day would likely cause the false claim to backfire on the faux-incumbent. There are other sanctions that would flow naturally from a false claim of incumbency (difficulty in being re-elected, possibility of recall or impeachment, etc.), reducing the need for legal sanctions.

Also note the limits that even the dissent would put on laws penalizing false speech (with many areas cordoned off along with a residual category of “other matters of public concern”):

“[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat.  The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

“Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mistaken.  And in these contexts, ‘[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.” ’  Sullivan, supra, at 279, n. 19 (quoting J. Mill, On Liberty 15 (R. McCallum ed. 1947)).

“Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends.  Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld?  And who should make that calculation? While our cases prohibiting viewpoint discrimination would fetter the state’s power to some degree, see  R. A. V.  v.  St. Paul, 505 U. S. 377, 384, 390 (1992) (explaining that the First Amendment does not permit the government to engage in viewpoint discrimination under the guise of regulating unprotected speech), the potential for abuse of power in these areas is simply too great.”

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Rick Hasen [mailto:rhasen at law.uci.edu]
Sent: Sunday, September 30, 2012 9:03 PM
To: Scarberry, Mark
Cc: 'law-election at UCI.edu'
Subject: Re: [EL] Fact-checking

If you read the Alvarez opinion, the Justices did not say that any stolen valor law violates the First Amendment, and Justice Breyer, for himself and Justice Kagan, specifically leaves open the possibility of a narrower stolen valor law being constitutional.

For reasons I express in my paper, I don't think any law allowing for damages or an injunction in relation to any campaign related speech is likely constitutional, and that would include a narrower stolen valor law.
But here's my paper's description of Eugene Volokh's interesting counter argument from a blog post:

But deciding exactly where to draw the line between permissible and impermissible laws aimed at false campaign and election speech is hard. Right after the Court’s decision in Alvarez, First Amendment scholar Eugene Volokh wrote of his uncertainty. He opined that some laws targeting false campaign speech by a candidate might be upheld because they involve candidates using a falsehood to get a job, and therefore in a sense they are “closer to financial fraud.” Further, he wrote that the government’s interest in preventing voter deception is “quite strong,” likely to pass Justice Breyer’s “intermediate scrutiny test,” although he noted that Justice Breyer also expressed concern about selective prosecutions.[1]
Professor Volokh added:

My guess is that general bans on lies in election campaigns would be struck down, because they cover a wide range of territory in which the truth may be hard to uncover, and in some measure in the eye of the beholder. But narrower bans on, say, knowingly false statements about when or where people should vote, knowingly false claims that some person or organization has endorsed you, knowingly false claims that you are the incumbent (see, e.g., Treasurer of the Committee to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986)), knowingly false claims about your own job experience — including military experience — and the like might be constitutional. It’s just hard to tell, given both the limited scope of the opinions and the 4-2-3 split.[2]

On 9/29/12 11:05 PM, Scarberry, Mark wrote:
I agree with Larry.

A question for Rick: Suppose a candidate makes a demonstrably false campaign statement to the effect that he was awarded the Congressional Medal of Honor? If a stolen valor law violates the First Amendment, I’d think a stolen incumbency honor prohibition would also violate it. Or would a stolen valor case come out differently in the context of an election? I know that we could analogize false campaign speech to fraud, but that’s too dangerous. (And what if Al Gore had run for office in 2004 and claimed to be the incumbent President?)

As a practical matter, it seems pretty clear that the Court is not going to create a new category of unprotected speech.

The only realistic situation in which a false claim of incumbency creates a serious problem is when it is made very shortly before an election, so that there is little or no opportunity  to rebut it, and when there is insufficient public interest for the statement to be known by many or most voters to be false. (Such a statement made earlier in a campaign will likely backfire seriously when the truth becomes known; such a statement made right before an election will backfire if a lot of voters know that it is a lie.) I’m not ready to sacrifice important First Amendment principles to deal with this narrow and relatively unimportant case.  The politician who gains an office through such a blatant, provable lie is unlikely to have a long career in public service.

There is also the very difficult problem of deciding how important a lie has to be for there to be a sanction (such as removal from office or invalidation of the election) and how clear it has to be that the candidate knew it was a lie. It seems likely that in practically every campaign there will be some statement that is demonstrably false.

The candidate who wants to evade a law punishing false campaign speech will just get a surrogate, perhaps someone in the press, to put forward the lie, and will maintain plausible deniability. Remember Mark Twain’s comment (closely paraphrased): The old proverb says let sleeping dogs lie; still, if it’s important, get a newspaper to do it.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Larry Levine [mailto:larrylevine at earthlink.net]
Sent: Saturday, September 29, 2012 2:12 PM
To: 'Rick Hasen'; Scarberry, Mark
Cc: 'law-election at UCI.edu<mailto:law-election at UCI.edu>'
Subject: RE: [EL] Fact-checking

Depends on where and how he or she makes the claim. The government has an interest in not allowing the false statement to appear on the ballot or in any official election material. Beyond that I don’t think the government has an interest. Too often the truth or falseness of a claim or statement is subjective. I’ll sing my same refrain: would that the press were able to devote the time and resources needed to cover campaigns in such a way as to discourage candidates from falsehoods.
Larry

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu]<mailto:[mailto:law-election-bounces at department-lists.uci.edu]> On Behalf Of Rick Hasen
Sent: Saturday, September 29, 2012 12:19 PM
To: Scarberry, Mark
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Fact-checking

What if anything should be done about demonstrably false campaign statements, such as a candidate falsely claiming to be the incumbent?

Rick Hasen

Sent from my iPhone. Please excuse typos.

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[1] Eugene Volokh, Freedom of Speech and Knowing Falsehoods, The Volokh Conspiracy, Jun. 28, 2012, http://www.volokh.com/2012/06/28/freedom-of-speech-and-knowing-falsehoods/.  Professor Volokh co-wrote an amicus brief in the Alvarez case arguing that false campaign speech is not deserving of constitutional protection. See http://www2.law.ucla.edu/volokh/alvarezbrief.pdf.

[2] Id.
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