[EL] Fact-checking

Sun Sep 30 09:15:38 PDT 2012

I agree with Dan in the two examples cited and for the reasons he gives. As
I've said earlier, I think the government's authority should end at the
point of not permitting a candidate to overtly make a false claim of current
incumbency on official election documents. For the judge in his example to
list his ballot title at Judge would not be accurate as he was not a judge
at the time. And as far as I know his name on the ballot could not include
the word judge any more than it could include any other title - Dr., Col.,
etc. 
There is a former State Senator in California who legally changed his first
name to Senator after he left office. But that's another matter and he never
attempted to run for office with that title.
To go beyond this narrow authority for the government to assess the accuracy
of a candidate's claims holds clear dangers as was demonstrated recently in
a situation in a city council election in a city where by ordinance
candidates are prohibited from mentioning their opponents in official ballot
statements. One candidate submitted a statement that said, in part: "Some
other candidates look at our city and see nothing but problems. I look at
our city and see a place to be treasured and protected." The elections
officer rejected that because it referred to the opposition candidates.
Another candidate submitted a statement in which he attacked "current city
councilmembers" and went on to list some council decisions with which he
disagrees. An incumbent councilmember, who is on the same ballot, objected
that this fell under the definition of mentioning the opposition. His
campaign said the elections official should not be allowed to accept a vague
reference to "current city councilmembers" but reject an equally vague
reference to "some other candidates." The elections official wouldn't change
his decision. Subjective. You bet. That, and the fact that the candidate who
was attacking the current city councilmembers is pretty well known as a
local and vocal agitator and the incumbent councilmember is knows and a
moderate person who would not make trouble.
But these are the things you can expect when you leave it to government
officials and bureaucrats to make judgment calls.
Larry

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Lowenstein, Daniel
Sent: Sunday, September 30, 2012 8:44 AM
To: Scarberry, Mark; 'law-election at UCI.edu'
Subject: Re: [EL] Fact-checking

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