[EL] Fact-checking
Larry Levine
larrylevine at earthlink.net
Sat Sep 29 14:12:02 PDT 2012
Depends on where and how he or she makes the claim. The government has an
interest in not allowing the false statement to appear on the ballot or in
any official election material. Beyond that I don't think the government has
an interest. Too often the truth or falseness of a claim or statement is
subjective. I'll sing my same refrain: would that the press were able to
devote the time and resources needed to cover campaigns in such a way as to
discourage candidates from falsehoods.
Larry
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Saturday, September 29, 2012 12:19 PM
To: Scarberry, Mark
Cc: law-election at UCI.edu
Subject: Re: [EL] Fact-checking
What if anything should be done about demonstrably false campaign
statements, such as a candidate falsely claiming to be the incumbent?
Rick Hasen
Sent from my iPhone. Please excuse typos.
On Sep 29, 2012, at 11:36 AM, "Scarberry, Mark"
<Mark.Scarberry at pepperdine.edu> wrote:
Mark,
Those very examples show the problems with government fact-checking. Obama
did say "you didn't build that." There is a dispute over how to interpret
those words in the context of the sentence or two preceding it, in the
context of the paragraph or two preceding it, in the context of the
President's general pronouncements and world view, and in the context of a
party that embraces concepts like "it takes a village." The same might be
said of Romney's "I like to be able to fire people" comment. In context it
probably meant that people in positions of responsibility who don't perform
adequately should be replaced, but others would say it should be interpreted
in light of the supposed mass firings he was supposed to have been
responsible for with Bain Capital. If we want to have freedom of speech and
of the press, we can't have a government body determining whose
interpretation of those statements is permissible.
Stay safe, and best wishes.
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark
Rush
Sent: Saturday, September 29, 2012 2:40 AM
To: Rick Hasen
Cc: law-election at UCI.edu
Subject: Re: [EL] Fact-checking
All--
Hi from the relatively stable, quiet part of the Middle East. I do need to
get Rick's paper and review the long string of posts more carefully. But
let me offer a couple of thoughts on this from the perspective of one who
watched a carefully content monitored election last year for the Federal
National Council in the UAE: it doesn't work.
Sure, "fact checking" elsewhere might be a bit less heavy handed. But, in
the spirit of making sure we had a good, clean, clear, non-confusing
election, the authorities vetted candidacies and monitored promises. If you
lied or made a promise that you could not keep, you could actually be
penalized or removed from the ballot. The result was a pretty bland
election, little in the way of real discussion of issues, no political
parties and, as you might have expected, abysmal (25% turnout).
This does embody one vision of what democracy ought to be, I guess. It
leans in the Orwellian direction, as Dan says. But, I do wonder if the
antithesis in the USA really can be said to be a qualitatively better
version. Viz.: Obama said you didn't build that and Romney likes to fire
people. Not exactly redeeming stuff.
Anyway, it's always good to lurk on the list.
cheers
On Sat, Sep 29, 2012 at 5:01 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
The interesting question is whether, under Alvarez, even objectively
verifiable lies (I am the incumbent and was endorsed by President Obama)
could be the subject of a damages action or some other penalty. On the
one hand, there is less danger of partisan abuse of objectively
verifiable facts. On the other hand, the Court notes that in cases of
objective facts that counter-speech might be the best solution (as in a
government database of true facts in the Stolen Valor context).
On 9/28/12 6:58 PM, Lowenstein, Daniel wrote:
> 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 de
partment-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_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>
>
> 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-bo
th-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%3Apart5.01040804.06020009 at law.uci.edu>
]<mailto:[cid:part5.01040804.06020009 at law.uci.edu
<mailto:cid%3Apart5.01040804.06020009 at law.uci.edu>
]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2
F%3Fp%3D40731
<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%20m
ore%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYaho
o%20poll%20finds%E2%80%9D&description=>
&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20hones
t%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20
finds%E2%80%9D&description=>
>
> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>
>
>
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> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv
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