[EL] Fact-checking

Fri Sep 28 05:57:02 PDT 2012

Dan says that "the paper gives a careful review of how current First
Amendment doctrine is likely to affect various types of possible
regulation." I take that to mean the proposals being considered don't
include constitutional amendments (please correct me if I'm wrong, anyone
who's seen the article).

If that's the case, then races where one party is a sitting Member of
Congress will have yet another major imbalance, since while "false campaign
statements" would be subject to regulation, the Speech and Debate Clause
would offer an easy way for some candidates to speak frank(ing)ly without
being made to answer for falsehoods.

So, for a current example (sorry for tempting the wrath of Jim here), take
the false claims about Planned Parenthood made in recent years by, among
others, Senators Kyl and Hatch and Rep. Schmidt. Suppose an open Senate
race featured a social conservative running against a member of the board
of the state's Planned Parenthood chapter: the conservative wouldn't be
able to claim "the group my opponent serves on the board of is an
organization where 98% of what they do is perform abortions" under the new
regime. But if an incumbent in a Senate race was challenged by that same
Planned Parenthood-affiliated candidate, they could make the claim on the
floor of the Senate, receive press coverage, answer questions about it,
etc. with Speech and Debate Clause protections.

It seems to me like that would put incumbents at an even greater advantage
over challengers, absent an amendment limiting the S&D Clause.

-JR

On Fri, Sep 28, 2012 at 8:26 AM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  "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]<
> 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=
> >
>
> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>
>
>
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