[EL] Fact-checking

Sun Sep 30 08:43:59 PDT 2012

          An important point that is not usually mentioned in discussion of this issue is that often the question turns not or not only on what the actual facts are, but on how the assertion in question is interpreted or applied to the facts.  This problem can and does exist even on a matter seemingly as straightforward as incumbency.

           In the 1980s, when I was first assembling teaching materials on this question, most of the cases were from Oregon.  In one (I'm dim on the details and in both of the examples I give, I'll call the candidate Smith), Smith had been a member of a county governing board that had staggered terms.  Because of a redistricting, the term she was serving (my recollection is that the candidate was a woman) had expired.  But the term for the new district she chose to run in did not expire until a later election year.  Therefore, there was a gap between the time her service ended and the election for a new term.  She distributed signs saying "Re-elect Smith."  This was held to be a false statement and the sanction, which I believe was overturning her victory or her nomination, was applied.  This seemed to me a very wrong decision.  Under the circumstances, it seemed to me reasonable for her to say she was running for reelection and certainly not a false statement simpliciter.  One can quarrel over whether the verb "re-elect" covers the situation, but it hardly would make sense to say that on a lawn sign or other campaign document, the full background needs to be set forth.

          In his paper, Rick refers to an Ohio case involving a false claim of incumbency.  The candidate had been a judge in the past and was not a judge at the time he was a candidate.  There may have been other statements that made the case clearer, but the only statement Rick quotes is along the lines of "Elect Judge Smith to the Superior Court [or whatever court it was]." This statement probably misled some voters into believing Smith was the incumbent, but I do not believe it is a false statement.  It is very common for people who have once held an office to be referred to by the title long after leaving the office.  Howard Smith, once chairman of the then powerful House Rules Committee and bete noire of liberals everywhere, was regularly referred to as Judge Smith.  When I first worked in Sacramento in the 1970s, the most powerful lobbyist in California had been a judge in the distant past and was regularly referred to as Judge Garibaldi.  A current candidate for President is no longer governor of Massachusetts but is regularly referred to as Governor Romney.  When news interviewers refer to him as such, does that mean Romney is following Mark Scarberry's advice and letting the press tell his lies for him?  I'd say use of such a title is not a lie, even if its use by "Judge" Smith probably misled some voters.

          You may think these two examples are highly idiosyncratic and would constitute a negligible proportion of false claims of incumbency.  I think otherwise.  I believe the knowing, flat-out, flagrant lie by a candidate, although not unheard of, is relatively uncommon.  Misleading, evasive, incomplete, and ambiguous statements are relatively common.  Regulation of campaign speech will be supported by people envisioning the first category.  The damage will come from the system's application to the second.  This will apply at least as much to a system of "fact-checking," whether conducted by the government or the press, as to a system of criminalization and punishment.

             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 Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
Sent: Saturday, September 29, 2012 11:05 PM
To: 'law-election at UCI.edu'
Subject: Re: [EL] Fact-checking

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.