[EL] Fact-checking

[JBoppjr at aol.com]

I think this all most obviously breaks down when we get beyond the simplest 
 cases.  
 
The more common situation is when both candidates are charged with  lying. 
Assuming they both did, then how does the government weigh one lie  against 
another?  Are some worse? What if there are actually multiple  lies?  On 
both sides too? Some think the remedy for lies is to award  damages, some think 
they forfeit office.  How does the government figure  out how to employ 
these remedies if both lie? 
 
This all becomes so subjective that partisan preferences will run  wild.  
Jim Bopp
 
 
In a message dated 9/30/2012 2:07:02 A.M. Eastern Daylight Time,  
Mark.Scarberry at pepperdine.edu writes:

 
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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