[EL] Fact-checking
JBoppjr at aol.com
JBoppjr at aol.com
Sun Sep 30 07:45:47 PDT 2012
The opponent, the press, the bloggers, etc. should publicize this and
condemn it as lie. Then the voters will decide whether, all things considered,
they should vote against the liar.
That is how it is supposed to work under the First Amendment. The voters
decide, not the government or bureaucrats. Jim Bopp
In a message dated 9/29/2012 4:10:31 P.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
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_ (mailto: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)
[_mailto: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_ (mailto: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_
(mailto: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_
(mailto:law-election-bounces at department-lists.uci.edu)
[_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Rick Hasen [_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) ]
> Sent: Friday, September 28, 2012 5:34 PM
> To: _law-election at UCI.edu_ (mailto: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_
(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)
<mailto:_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) <mailto:_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_ (mailto: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)
<mailto:_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_
(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
_
(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_
(http://electionlawblog.org/?p=40731) >
>
> Posted on September 27, 2012 10:57
am<_http://electionlawblog.org/?p=40731_ (http://electionlawblog.org/?p=40731) > by Rick
Hasen<_http://electionlawblog.org/?author=3_ (http://electionlawblog.org/?author=3) >
>
> Yahoo News
reports<_http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html_
(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_ (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/) <_http://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) ]<mailto:[_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%9CAme
ricans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect
%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&desc
ription=_
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=40731&title=“Americans%20say%20Obama’
s%20ads%20are%20more%20honest,%20but%20expect%20both%20sides%20to%20lie,%20Esquire/Yahoo%20poll%20finds”
&description=) >
>
> Posted in campaigns<_http://electionlawblog.org/?cat=59_
(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)
<mailto:_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) >
> _http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
> _http://electionlawblog.org_ (http://electionlawblog.org/)
> Now available: The Voting Wars: _http://amzn.to/y22ZTv_
(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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
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(http://amzn.to/y22ZTv)
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