[EL] Fact-checking

[Scarberry, Mark]

I agree with Larry.

A question for Rick: Suppose a candidate makes a demonstrably false campaign statement to the effect that he was awarded the Congressional Medal of Honor? If a stolen valor law violates the First Amendment, I'd think a stolen incumbency honor prohibition would also violate it. Or would a stolen valor case come out differently in the context of an election? I know that we could analogize false campaign speech to fraud, but that's too dangerous. (And what if Al Gore had run for office in 2004 and claimed to be the incumbent President?)

As a practical matter, it seems pretty clear that the Court is not going to create a new category of unprotected speech.

The only realistic situation in which a false claim of incumbency creates a serious problem is when it is made very shortly before an election, so that there is little or no opportunity  to rebut it, and when there is insufficient public interest for the statement to be known by many or most voters to be false. (Such a statement made earlier in a campaign will likely backfire seriously when the truth becomes known; such a statement made right before an election will backfire if a lot of voters know that it is a lie.) I'm not ready to sacrifice important First Amendment principles to deal with this narrow and relatively unimportant case.  The politician who gains an office through such a blatant, provable lie is unlikely to have a long career in public service.

There is also the very difficult problem of deciding how important a lie has to be for there to be a sanction (such as removal from office or invalidation of the election) and how clear it has to be that the candidate knew it was a lie. It seems likely that in practically every campaign there will be some statement that is demonstrably false.

The candidate who wants to evade a law punishing false campaign speech will just get a surrogate, perhaps someone in the press, to put forward the lie, and will maintain plausible deniability. Remember Mark Twain's comment (closely paraphrased): The old proverb says let sleeping dogs lie; still, if it's important, get a newspaper to do it.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: Larry Levine [mailto:larrylevine at earthlink.net]
Sent: Saturday, September 29, 2012 2:12 PM
To: 'Rick Hasen'; Scarberry, Mark
Cc: 'law-election at UCI.edu'
Subject: RE: [EL] Fact-checking

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> [mailto:law-election-bounces at department-lists.uci.edu]<mailto:[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<mailto: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.
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