[EL] Fact-checking

Fri Sep 28 09:01:46 PDT 2012

Yes, Lori, there once was a press presence to help keep candidates honest.
But today's newspapers are just a shadow of that bygone time. Today, they
have neither sufficient staff nor staff that is sophisticated enough to do
the job. I know some would argue they never did the job without bias because
of the political bent of the various outlets. Here in L.A. there was a time,
just 15 years ago or so, when local elections were covered by the L.A. Times
as ongoing news stories. Reporters would cover the candidates through
succession of forums and debates; they would point out when candidates were
contradicting themselves from one night to the next; they would review
charges and counter charges. Now, the typical legislative race or city
council election will get three stories - filing closed and here are the
candidates, here's a situationer on this campaign; the election is Tuesday
and here are the candidates. I credit the wane of the media with the
explosion of attack mailers and other campaign tactics for which we know we
no longer will be called out.

Larry

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lori
Minnite
Sent: Friday, September 28, 2012 8:45 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Fact-checking

It's a bit of a sad commentary on journalism today that says we need
government-sponsored fact-checking of anything, or media-sponsored
fact-checking of itself.  Isn't fact-checking the function and duty of a
free press in a democracy?

Lori Minnite

On 9/28/2012 10:11 AM, Rick Hasen wrote: 

Ah, there's nothing like waking up to multiple attacks on the listserv!   I
am at a conference and so I will have to respond later.  In the meantime,
you might look at my actual paper, which explains the basis for my defense
of such commissions.  And we have an actual commission in Ohio, which I
discuss in the paper.  

Rick Hasen

Rick Hasen 

Sent from my iPhone. Please excuse typos. 

On Sep 28, 2012, at 7:33 AM, "Sean Parnell"
<sean at impactpolicymanagement.com> wrote:

I suggest we run a pilot program for 'fact-checking' or 'false statements'
in politics, except we do it with the media instead. Maybe just start with a
few of the largest outlets in the country, just to see how it goes and work
out any kinks? So, we could have the finest 'fact checkers' in the country
monitor the New York Times, NBC News, and while we're at it the Huffington
Post (since more Americans are turning to the web these days for news), and
maybe a few other outlets as well for the accuracy of their coverage, and
hand out penalties for anything in the paper considered to be false,
inaccurate, or misleading. As a value-added service, the government fact
checkers could offer to pre-clear every story before it's released, giving
it their stamp of approval and indemnifying the media outlet for any
inaccuracies that might somehow slip through or later be discovered. Maybe
we do it for one year, see how it goes? There's always the question of who
gets to appoint the fact checkers, perhaps the President could appoint a
Truth Czar who needs to be confirmed by the Senate? And if the Senate balks
or delays, why that's what recess appointments (whether the Senate is or is
not officially in recess) are for. Can't imagine any problems here.

I'd truly love to hear an argument on why this is or is not a good idea from
those who favor any sort of government fact-checking/false speech
regulations for candidates. 

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

-----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: Friday, September 28, 2012 2:27 AM
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>
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_6
11854.html>
http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_61
1854.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>
http://electionlawblog.org/?p=40731>

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

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

My new paper< <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
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.

 <mailto:[cid:part5.01040804.06020009 at law.uci.edu]>
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