[EL] Fact-checking

Fri Sep 28 17:58:12 PDT 2012

       One quibble with Rick's generous post.  If what he is suggesting is that most people can agree that Ryan's acceptance speech at the convention is an example of false campaign statements, he is incorrect.  That may be a consensus among Democrats and many journalists, but it is certainly not agreed to by Republicans and so far as I can tell, there is precious little ground for it.  The point that I think got the most attention was the supposed false statement that the Janesville factory closed during Obama's administration.  The Associated Press, in particular, claimed that Ryan's claim was false because the plant closed in December, 2008.  But aside from the point that Ryan did not actually say anything about when the plant closed, the Associated Press failed to note its own news reports in 2009 that the plant was going to be closed in April of that year.  As Mark Hemingway pointed out in the current article I linked to this morning, most of the complaints about Ryan's speech are simply complaints that the Democrats have rebuttals that Ryan did not report.

        As to the existence of anyone objective who can declare what's true and false in campaigns, that is a different question from whether the existing "fact-checkers" are in fact objective.  But the more fundamental point is that the kinds of questions that are mostly at stake in these controversies do not lend themselves to to simple declarations of truth or falsity.  Anyone here can declare objectively that it is false that the American Civil War began in 1812.  But if the statement is, the Civil War was caused by southern intransigence, only a fool would think it can be reolved by "true or false" or, for that matter, zero through four Pinocchios.  Most of the questions that matter about campaign claims are closer to the latter than the former.

             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 Rick Hasen [rhasen at law.uci.edu]
Sent: Friday, September 28, 2012 5:34 PM
To: law-election at UCI.edu
Subject: Re: [EL] Fact-checking

I must say that today I love the listserv.

I was off at the great Montana election law conference presenting my draft paper on campaign finance lies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the first time. I came back to very thoughtful comments which are causing me to rethink an aspect of my paper.

 To be very brief, I argue that after the Supreme Court's fractured opinions in U.S. v. Alvarez, there are three kinds of false campaign speech laws which are likely to be constitutional and one which is not.  Applying the three opinions in the case I conclude that he three likely constitutional are:

1. Laws barring false speech about the time and date of elections (such as a false statement about where to cast a ballot).
2. Laws allowing the government not to reprint a false statement in ballot materials (e.g., state does not need to repeat a lie that a non-incumbent candidate is an incumbent)
3. Laws barring defamatory campaign speech about a candidate proven with actual malice (though there is some question about this after Alvarez).

The one category which is the hardest, is the constitutionality of laws barring false campaign speech, as in: "I am the incumbent and I've been endorsed by President Obama."

In the paper I conclude that, after Alvarez, any such laws which would enjoin such speech or provide damages for such speech are very likely unconstitutional.  (Eugene Volokh in a blog post has expressed greater confidence on the constitutionality of a narrow version of such laws.)

I then turn to truth commissions like Ohio, and I conclude that the Sixth Circuit's decision in Pestrak, upholding the Ohio commission's "truth declaring" function likely survives Alvarez and remains constitutional.

In the current draft of the paper at the end I suggest that these truth commissions are not only likely constitutional, but also a modestly good thing given the decline of the media as a good arbiter of the truth in our highly partisan era.

But having read all of the listserv commentary, and also hearing at today's conference from Ned Foley about the Ohio experience, I am having very serious reservations on the normative value (not the constitutionality) of these commission.  (I'm setting aside the preemption issue for federal elections).  The risk of political manipulation just before the election may be too high.  Ideally I'd like to study the actual decisions made by the commission, but I don't think I'd have time to do it in time for this publication in the Montana symposium.  So I appreciate very much all of the input about the dangers of such commissions declaring truth before elections.

Finally, on the question of conservatives and post-modernism/truth.  It does seem to me that conservatives in this election have taken a very strong position against the media and fact checkers, even when there were (what I view as) demonstrably false statements made by candidates. This is different from earlier elections, and I don't think the MSM ha changed.  I think each side can disagree with particular calls of journalists and fact checkers, but the Ryan speech is a good example, as are a couple of Obama's ads against Romney.  I'd also point to the claim that all of the polls are biased against Romney, which reminds me of what I think Kerry's team was saying in 2004.  So I'll stand by my (more controversial) statement that there does seem to be a rejection on the conservative side that there's anyone objective out there who has the ability to fairly declare what's true and false in campaigns.  And I think that's a change.

Rick

On 9/28/12 8:11 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<mailto: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<mailto:sean at impactpolicymanagement.com>

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu<mailto: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<mailto: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<http://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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