[EL] Fact-checking

[Marty Lederman]

Actually, Brad, your brief is online, and it includes the AG's explanation
of what he did here:

http://littleurl.info/9h5~

On Fri, Sep 28, 2012 at 3:54 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  Marty,****
>
> ** **
>
> I don’t believe that the briefs are available on line, and the AG never,
> to my knowledge, made a formal statement.****
>
> ** **
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault *
>
> *  Professor of Law*
>
> *Capital University Law School*
>
> *303 East Broad Street*
>
> *Columbus, OH 43215*
>
> *(614) 236-6317*
>
> *bsmith at law.capital.edu*
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp*
>
> ** **
>
> *From:* Marty Lederman [mailto:lederman.marty at gmail.com]
> *Sent:* Friday, September 28, 2012 3:46 PM
> *To:* Smith, Brad
> *Cc:* law-election at UCI.edu
> *Subject:* Re: [EL] Fact-checking****
>
> ** **
>
> Brad:  Putting the merits of the Ohio statute aside, I've long been
> interested in the phenomenon of executive officials not defending the
> constitutionality of statutes.  What the Ohio AG did here -- apparently
> have his office defend but then file an amicus brief in effect taking issue
> with the views of his own office -- has at least one historical precedent:
> what Bob Bork did in Buckley v. Valeo.  (The SG's office set up a "chinese
> wall" between two sets of lawyers.  One set, led by Deputy SG Louis
> Claiborne, drafted a brief for the federal defendants (the AG and the FEC),
> defending the contribution and expenditure provisions of FECA; the other,
> led by Deputy SG Frank Easterbrook, drafted an brief on behalf of the AG
> and "amicus" United States, in effect questioning the constitutionality of
> the statute.  If memory recalls, Bork and AG Levi signed both briefs.)
>
> Do you happen to have the two briefs handy, and any statements issued by
> DeWine?  Thanks****
>
> On Fri, Sep 28, 2012 at 2:58 PM, Smith, Brad <BSmith at law.capital.edu>
> wrote:****
>
> It is hard to say enough bad things about Ohio’s law and its application,
> and it is often worse than even what Brian notes below. For example,
> experienced Ohio election attorneys know how to when to file a case shortly
> before the election, so that a probable cause hearing will be held on the
> Thursday morning before the election.  If one gets a “probable cause”
> finding, which is handled by a panel consisting of 3 commissioners (who
> need not have any legal or judicial training or experience), one can then
> highlight it all through the weekend and the Monday before the election.
> One need never actually have a merits hearing – in fact, a great many
> complaints are dropped after the election, having served their purpose of
> gaining a political advantage. The complainant gains little more by
> pursuing the issue, and runs the risk of having the Commission determine
> that no violation occurred after all. ****
>
>  ****
>
> One can argue in theory that many of these administrative issues can be
> resolved, but as a practical matter it is hard to envision any such system
> that will not be subject to abuse. ****
>
>  ****
>
> Earlier this year, Ohio Attorney General Mike DeWine took the unusual step
> of filing an amicus brief arguing to a Federal Court that the law was
> unconstitutional (leaving defense of the law to the AG’s career staff). (I
> served as Special Counsel for the AG in that matter – the above statements
> reflect my views, and not necessarily those of Attorney General DeWine).
> http://www.campaignfreedom.org/2012/02/20/ohio-attorney-general-questions-constitutionality-of-state-false-statements-law/
> ****
>
> (earlier this month the Court dismissed the case on jurisdictional
> grounds).****
>
>  ****
>
> *Bradley A. Smith*****
>
> *Josiah H. Blackmore II/Shirley M. Nault *****
>
> *  Professor of Law*****
>
> *Capital University Law School*****
>
> *303 East Broad Street*****
>
> *Columbus, OH 43215*****
>
> *(614) 236-6317*****
>
> *bsmith at law.capital.edu*****
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp*****
>
>  ****
>
> *From:* Svoboda, Brian (Perkins Coie) [mailto:BSvoboda at perkinscoie.com]
> *Sent:* Friday, September 28, 2012 2:24 PM****
>
>
> *To:* Smith, Brad; Scarberry, Mark; law-election at UCI.edu****
>
> *Subject:* RE: Fact-checking****
>
>  ****
>
> I have represented clients in false statement complaints before the Ohio
> Elections Commission.  (I hasten to note that I speak for myself, not
> them.)  It seems to me that there are many aspects of that state's
> particular process that provide cause for concern, besides the broad First
> Amendment issues involved.  On those issues, I will be eager to read Rick's
> paper, once the elections are over, and after I have taken a nap.****
>
>  ****
>
> First, in federal races, there is a strong argument that Ohio's statutes
> are preempted.  In Advisory Opinion 1986-11, the FEC found a related
> section of the Ohio Revised Code to be preempted, when the statute
> prohibited candidates from using titles that imply incumbency in their
> campaign materials, http://saos.nictusa.com/aodocs/1986-11.pdf.  Yet like
> New Hampshire, where the state continues to enforce its so-called "push
> poll" disclaimer statute in federal races despite the FEC's finding of
> preemption in Advisory Opinion 2012-10,
> http://saos.nictusa.com/aodocs/AO%202012-10.pdf, Ohio continues to
> enforce the statutes in federal races, raising the age-old question, "How
> many divisions does Commissioner Hunter have?"  (Or, perhaps, "The
> Commissioners have made their ruling.  Now let them enforce it.)****
>
>  ****
>
> Second, the complaints under the Ohio statutes with which I am familiar
> are generated by political candidates, for political reasons.  For
> candidates, there are myriad tactical advantages to filing a complaint.
> The simple act of filing can generate a press story, when the press might
> not otherwise write about the dispute; saying that Candidate A filed a
> false statement complaint over S.B. 1 is easier than learning and
> explaining what S.B. 1 actually did.  A positive commission outcome gives
> the candidate the chance to cite it in their own ads, or in letters to
> television stations that ask them to reject ads that aren't candidate
> "uses" and don't enjoy the Communications Act's no-censorship protections.
> And a complaint consumes the resources of the opposition who, if prudent,
> will hire a lawyer to oppose it.****
>
>  ****
>
> Third, Ohio's process does not lend itself to careful resolution of these
> complaints, especially right before the election.  Ohio's law is not unique
> in generating partisan complaints; the FEC is no stranger to them either,
> at least in the campaign finance field.  But FEC rules provide a process by
> which a complaint can be defended in the first instance at minimal expense
> to the respondent, and can be reviewed and dismissed entirely on the
> pleadings.  This allows the agency to separate the wheat from the chaff,
> usually over a period of months, and thereby minimize the distortion of
> electoral outcomes.  But Ohio has a "rocket docket," where
> election-sensitive false statement complaints receive an immediate, public,
> probable cause hearing.  If the commission finds probable cause, then the
> complaints receive expedited discovery and a pre-election hearing.  This
> does not lend itself easily to calm, thoughtful resolution of highly
> charged matters, especially when the commission is divided among members of
> the two political parties.****
>
>  ****
>
> Last, the manner in which the commission considers the complaints recalls
> Justice Stewart, who knew obscenity when he saw it.  One could sensibly
> interpret the Ohio statute on voting records to limit its application to
> binary questions of empirical fact: e.g., to apply when I say Hasen voted
> "No" on S.B. 1, when he actually voted "Yes."  And the case law indicates
> that, even without an express actual malice requirement, the statute is
> only enforceable under the First Amendment if there is knowledge of falsity
> or reckless disregard.  But in practice, Ohio leaps past the binary, and
> plunges into the contextual.  It asks not only whether Hasen voted "Yes" or
> "No" on S.B. 1, but whether the advertisement accurately characterized what
> S.B. 1 did.  From my experience, the commissioners see their task much as
> PolitiFact does: they ask whether the ad is true or not, while glossing
> over the question of actual malice.  I recall one hearing where a member of
> the panel said -- and this is a verbatim quote -- "I don't like this ad.
> This is just the kind of ad we are trying to stop through proper conduct."
> ****
>
>  ****
>
> When a state regulates in areas of core First Amendment activity, it
> should carefully construe the statute to avoid constitutional
> difficulties.  It should employ a rigorous process that disposes of
> meritless complaints and avoids unnecessary distortion of electoral
> outcomes.  It should minimize, rather than maximize, the opportunities for
> partisan abuse of the process.  And it should employ objective, not
> subjective, standards to find violations.  My experience is that Ohio's
> process is administered by intelligent, earnest and conscientious people,
> who are trying to follow the law as they understand it.  But the process
> merits some careful review, especially in a world where political actors
> increasingly reasons to employ it.****
>
>  ****
>
> =B.****
>
> *Brian G. Svoboda* * **|* * **Perkins Coie **LLP
> *700 Thirteenth Street N.W.
> Washington, DC  20005-3960
> PHONE: 202.434.1654
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> NOTICE: This communication may contain privileged or other confidential
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>
>  ****
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
> *Sent:* Friday, September 28, 2012 8:27 AM
> *To:* Scarberry, Mark; law-election at UCI.edu
> *Subject:* Re: [EL] Fact-checking****
>
>  ****
>
> "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<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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