[EL] Fact-checking

[Lowenstein, Daniel]

        All Mr. Stewart's questions might also be put to inquire if and when damages might be available in the hypothetical situation that a state has created a commission to officially declare campaign advertisements truthful or false, as discussed by Rick Hasen in his paper.  Although the commission has no power to impose any penalty, the candidate can surely be harmed.  That is the evident purpose of a commission's promulgation of a finding of falsity.

             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


________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Robbin Stewart [gtbear at gmail.com]
Sent: Friday, September 28, 2012 12:23 PM
To: Svoboda, Brian (Perkins Coie)
Cc: Scarberry, Mark; law-election at UCI.edu; Smith, Brad
Subject: Re: [EL] Fact-checking

As for government bureaucrats deciding the relative truthiness of political statements, bring it on.  Speaking for my own selfish interest, that's a goldmine of litigation in the making.
Forward,
First Amendment Ben

I have a question for the list about damages. Assume that a state has created a Bureau of Truth, somewhat like Ohio's, that your client is a candidate, that the Bureau finds one of her statements untrue, but they are provably wrong. Your client wants to sue them for damages under the First Amendment and the (hypothetical but typical) state constitution. I'm asking a descriptive question, not a normative one. Are damages available? Does the bureau have absolute or qualified immunity? If QI, can it be overcome here? Is the Bureau a person who can be sued under 1983? If not, what other statutes can be used? Can one assert a constitutional tort as in Bivens? I have found that injunctions and declaratory judgments have little deterrent effect on rogue agencies.

I had an interesting episode of law-checking a Bloomberg article this morning.
http://ballots.blogspot.com/2012/09/hi.html

My further thoughts on this thread are here:
http://ballots.blogspot.com/2012/09/i-am-sitting-in-buffalo-library-killing.html




On Fri, Sep 28, 2012 at 2:52 PM, Svoboda, Brian (Perkins Coie) <BSvoboda at perkinscoie.com<mailto:BSvoboda at perkinscoie.com>> wrote: