[EL] Fact-checking
Rick Hasen
rhasen at law.uci.edu
Mon Oct 1 11:16:58 PDT 2012
Yes, in my paper I rely on that language of the dissent---as well as
statements from the other justices--to say that the Court could well
unanimously hold that a law imposing damages or a penalty for false
campaign speech likely would be unconstitutional.
On 10/1/12 1:18 AM, Scarberry, Mark wrote:
>
> 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] <#_ftn1>
>
> 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] <#_ftn2>
>
> 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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>
>
> --
> 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
> Now available: The Voting Wars:http://amzn.to/y22ZTv
>
>
> ------------------------------------------------------------------------
>
> [1] <#_ftnref1> 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] <#_ftnref2> /Id./
>
>
>
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--
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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv
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