[EL] Fact-checking

Sun Sep 30 21:03:00 PDT 2012

If you read the Alvarez opinion, the Justices did not say that /any/ 
stolen valor law violates the First Amendment, and Justice Breyer, for 
himself and Justice Kagan, specifically leaves open the possibility of a 
narrower stolen valor law being constitutional.

For reasons I express in my paper, I don't think any law allowing for 
damages or an injunction in relation to /any/ campaign related speech is 
likely constitutional, and that would include a narrower stolen valor law.
But here's my paper's description of Eugene Volokh's interesting counter 
argument from a blog post:

But deciding exactly where to draw the line between permissible and 
impermissible laws aimed at false campaign and election speech is hard. 
Right after the Court's decision in /Alvarez, /First Amendment scholar 
Eugene Volokh wrote of his uncertainty. He opined that some laws 
targeting false campaign speech by a candidate might be upheld because 
they involve candidates using a falsehood to get a job, and therefore in 
a sense they are "closer to financial fraud." Further, he wrote that the 
government's interest in preventing voter deception is "quite strong," 
likely to pass Justice Breyer's "intermediate scrutiny test," although 
he noted that Justice Breyer also expressed concern about selective 
prosecutions.[1] <#_ftn1>

Professor Volokh added:

My guess is that general bans on lies in election campaigns would be 
struck down, because they cover a wide range of territory in which the 
truth may be hard to uncover, and in some measure in the eye of the 
beholder. But narrower bans on, say, knowingly false statements about 
when or where people should vote, knowingly false claims that some 
person or organization has endorsed you, knowingly false claims that you 
are the incumbent (see, /e.g./, /Treasurer of the Committee to Elect 
Gerald D. Lostracco v. Fox/, 389 N.W.2d 446 (Mich. Ct. App. 1986)), 
knowingly false claims about your own job experience --- including 
military experience --- and the like might be constitutional. It's just 
hard to tell, given both the limited scope of the opinions and the 4-2-3 
split.[2] <#_ftn2>

------------------------------------------------------------------------

[1] <#_ftnref1> Eugene Volokh, /Freedom of Speech and Knowing 
Falsehoods/, The Volokh Conspiracy, Jun. 28, 2012, 
http://www.volokh.com/2012/06/28/freedom-of-speech-and-knowing-falsehoods/.Professor 
Volokh co-wrote an amicus brief in the /Alvarez /case arguing that false 
campaign speech is not deserving of constitutional protection. /See 
/http://www2.law.ucla.edu/volokh/alvarezbrief.pdf.

[2] <#_ftnref2> /Id./

On 9/29/12 11:05 PM, Scarberry, Mark wrote:
>
> 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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-- 
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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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