[EL] Fact-checking

Fri Sep 28 05:26:31 PDT 2012

"We're not going to let our campaign be dictated by facts" would be a kind of post-modern relativism in which truth is now in the eyes of the beholder. "We're not going to let our campaign be dictated by [self appointed] fact-checkers" is simply a comment on the quality of the actual work being done by "fact-checkers." That a "fact checker" says 2+2=5 does not make it so, and does not make the critic of such a statement a "post-modern relativist."

But this is not just trivial nit-picking on a characterization. To a substantial extent, the entire problem with government efforts to regulate "false" speech in campaigns is that the government ends up - rather routinely, it seems - regulating statements that simply are not objectively true or false, but are matters of prediction, interpretation, or presentation of data. It is relatively rare that politicians actually "lie" (or to be more fair, "err") about matters of fact. What they do routinely is selectively use, characterize, and interpret facts to advance an argument. Efforts to regulate "false statements" in politics tend to end up being trivialized (a common bit of fodder for the Ohio Elections Commission, for example, are bumper stickers and yard signs that read "Smith State Representative" when Smith is not a state representative, but merely a candidate for the office - the OEC demands that they state "Smith for State Representative") or subjectively politicized (such as determining which side has the better argument on a complex issus such as whether proposed new rules "gut" welfare work requirements). When the press makes the mistake of calling the latter "fact checking" (as opposed to something like "analysis") well, OK. But we don't need government doing it in the midst of campaigns.

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 Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Friday, September 28, 2012 3:21 AM
To: law-election at UCI.edu
Subject: Re: [EL] Fact-checking

I was struck by Rick's comment on Republican criticism of fact-checkers:

"It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder."

The criticism I've seen of fact-checkers is not that there is no objective truth to be found with respect to simple factual matters, but rather that the fact-checkers seem to be biased in their approach to what is or is not factual and in the standards they apply to claims made by Republicans and by Democrats.

Of course it could be argued that fact-checking is pointless, because whoever does the checking will just see what they want to see, based on their biases. That would be a post-modern relativistic approach, I suppose, but I don't think it is the complaint that is being made.

Occasionally, the criticism is that the fact-checkers are labeling claims as false, when the claims are opinions with which the fact-checkers simply disagree. If a person says that the President's middle east policy has not served our interests well, that is an opinion. We can argue about whether the President's policy has been effective or not in advancing our interests, whatever we may think they are. The arguments will not be about simple facts that a reporter can quickly and objectively determine. I don't think you have to be a post-modern relativist to see that a simple fact-check approach is not likely to be helpful in evaluating such an opinion. Of course, if someone says that the policy has failed because Egypt has tested nuclear weapons, a fact-checker can justifiably hand out multiple Pinocchios or call a "pants on fire" alert.

Mark

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein, Daniel
Sent: Thursday, September 27, 2012 11:27 PM
To: Rick Hasen; law-election at UCI.edu
Subject: [EL] Fact-checking

      I have read Rick's paper, which he was good enough to send me, on regulating false campaign statements.  As one would expect given the author, the paper gives a careful review of how current First Amendment doctrine is likely to affect various types of possible regulation and identifies the kinds of regulation that have a fair or good chance to survive in an area in which the Constitution is not friendly to regulation.

      Somewhat to my surprise, Rick is friendly in the paper to the idea of "fact-checking" by government agencies (though it's not entirely clear whether he is saying only that such an enterprise has a fair chance of being upheld or is supporting it as a policy matter).  In this connection, I think it is relevant that Rick notes but does not go much into the criticisms of fact-checking by the press.

       The most trenchant criticism that I know of has come from a series of writings by Mark Hemingway in the Weekly Standard.  Rick opens his article with two examples of fact-checking, one nailing Obama and the other Romney.  The Romney example is that fact-checkers have condemned his ads claiming that the Obama administration threatens to gut the work requirement of Clinton-era welfare reform.

        As it happens, Hemingway has a lengthy article in the current issue of the Weekly Standard focussing on this very point.  See http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.  Hemingway makes what appears on its face to be a strong argument that Romney's claim is accurate, but I don't know nearly enough about welfare to have an independent opinion on that.  In any event, Hemingway makes an overwhelming case that the fact-checkers who have condemned Romney on this have been at best extremely inept and most likely acting in some degree of bad faith.

         Anyone interested in this subject should also read Hemingway's more general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking," published last December, which is also extremely persuasive.  http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html

         There are many reasons why fact-checking in the context of political debate is highly problematic and should be considered with great skepticism.  Hemingway makes a strong case that the currently prominent fact-checkers are biased, but even if they were not at all biased, the problems would run deep.  Needless to say, none of the above suggests any doubt about the right of the press to engage in fact-checking to it's heart's content.  But I hope institutionalized fact-checking by the government would be found unconstitutional.  Whether or not it would be, it seems to me an inherently Orwellian enterprise that ought to be strongly opposed.

             Best,

             Daniel H. Lowenstein

             Director, Center for the Liberal Arts and Free Institutions (CLAFI)

             UCLA Law School

             405 Hilgard

             Los Angeles, California 90095-1476

             310-825-5148

“Americans say Obama’s ads are more honest, but expect both sides to lie, Esquire/Yahoo poll finds”<http://electionlawblog.org/?p=40731>

Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731> by Rick Hasen<http://electionlawblog.org/?author=3>

Yahoo News reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.

My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there is a constitutional right to lie in campaigns and elections begins:

Election 2012 may well go down in history as the “4 Pinocchios Election.” It is perhaps no coincidence that the current election season has seen both a rise in the amount of arguably false campaign speech and the proliferation of journalistic “fact checkers” who regularly rate statements made by candidates and campaigns. Journalistic ratings such as Politifact’s “Truth-o-meter” rank candidate statements from from “true” and “mostly true” to “false” and even “pants on fire.” The Washington Post rating system, which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to 4 “Pinocchios” for false statements. The granddaddy of fact checking groups, Factcheck.org, while avoiding a rating system, offers analysis which regularly describes controversial campaign claims as “false” or “wrong.

Both the Romney and Obama presidential campaigns have received stinging ratings from fact checkers. The Washington Post’s Fact Checker, Glenn Kessler, gave the Obama campaign “4 Pinocchios” for claiming that Mitt Romney, while working at Bain Capital, “outsourced” jobs and was a “corporate raider.” Romney’s campaign similarly got “4 Pinocchios” for claiming there was an “Obama plan” to weaken federal welfare law and issue welfare checks to people who do not work.”

Romney’s campaign has seemed to bear more of the brunt from the fact-checking enterprise.  Based solely upon Kessler’s subjective assessment of truth, by mid-September 2012 the Washington Post fact checker rated Romney ads and statements with an average of 2.33 Pinocchios to Obama’s 1.96. Perhaps the greatest media attack on the truthfulness of Romney’s campaign came in response to the acceptance speech of Romney’s running-mate, Representative Paul Ryan, which the New York Times described as containing “a number of questionable or misleading claims.”

Whether campaigns are resorting to lies and distortion more often than in previous elections, and if so why they are doing so, are interesting questions beyond that which I can explore in this brief Article. False and misleading speech may be increasing thanks to the proliferation of the Internet and a decline in uniform trustworthy sources of news, such as the national news networks and major newspapers. Political polarization also may play a role, with partisans egged on to believe unsupported claims by the modern day partisan press, in the form of FOX News, MSNBC, and liberal and conservative blogs and websites.

Fact check operations also are controversial to journalists, who have always been in the business of resolving conflicting factual claims as part of the news gathering process. Some journalists take issue with the effectiveness of fact checkers. Media critic Jack Shafer declares, “Give [candidates] a million billion Pinocchios and they’ll still not behave.” Others defend the “fact check” process but see them losing their effectiveness.

In 2012, fact checking itself came under attack from the right, with some advancing the claim that fact checkers are a biased part of the “liberal media.”Neil Newhouse, the Romney campaign’s pollster, proclaimed that “We’re not going to let our campaign be dictated by fact-checkers.” It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder.

In this highly charged partisan atmosphere, in which each side cannot agree upon the basic facts, mudslinging has become terribly common, and the media are not able to meaningfully curb candidates’ lies and distortions, it is tempting to consider federal and strengthened state legislation to deter and punish false campaign speech. Why not let courts or commissions sort out truth from fiction? Indeed, a number of states already have laws in place which provide some government sanction for false campaign speech.

[cid:part5.01040804.06020009 at law.uci.edu]<mailto:[cid:part5.01040804.06020009 at law.uci.edu]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>

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