[EL] Fact-checking

[Benjamin Barr]

Seems there are some real issues popping up when government actors attempt
to decide matters so basic as "true" names or "true" campaign statements.
Perhaps the underlying assumption behind the concept is false.

I posed my earlier question to the list (whether devolution of press
functions and fact checking constituted decline or dynamism) because the
wider involvement of the citizenry in press functions and fact-gathering
and checking seem a healthy movement toward self-governance, not a
deleterious one. That seems true even if the citizenry didn't receive
technical or elite training in journalism.  Benjamin Franklin might agree.

As to Rick's question about whatever shall we do concerning some false
statements - let citizens (they are capable of distinguishing fact from
fiction) acting in concert with the Press and the press along with
non-profits sort it out. While the Press had to "limit" its fact-checking
of some candidates, the people easily removed those candidates from the
primaries, Jon Stewart made a lot of money, the "birther" movement has
faded from mainstream discussion, and so on...all without government truth
squads in place.

The alternative to the freedom contemplated by the First Amendment is a
sort of creeping paternalism, ever en vogue in the U.S., where we remove
key components of civic life from our citizens to the hands of an
enlightened few. Removing these key areas of responsibility from individual
life only exacerbates the problems of civic engagement and responsibility.
People need to get enraged, engaged, and interested in political life-not
given reasons to hand this over to the speech police. Trusting people to
evaluate information, or give space for them to do so and better develop
those capacities, entrusts the well-functioning of the Republic with "we
the people" instead of anointed speech bureaucrats. And, as Jim pointed
out, that's the whole purpose behind the First Amendment. I think we can
handle the task.

Entrust government commissions with the God-like power to decide orthodoxy
of political "truth"?  "Authority here is to be controlled by public
opinion, not public opinion by authority." West Va. BD. Educ. v. Barnette.
To cede truth and fact checking functions to bureaucrats makes "an
unflattering estimate of the appeal of our institutions to free minds. We
can have intellectual individualism and the rich cultural diversities that
we owe to exceptional minds only at the price of occasional eccentricity
and abnormal attitudes."

As for me, I'll stick with the people, abnormal attitudes and all.

Forward,

First Amendment Ben

Sent by my Android device. Please excuse any typographical errors.
On Sep 30, 2012 12:16 PM, "Larry Levine" <larrylevine at earthlink.net> wrote:

> 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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