I'm very much looking forward to reading Bill's article.  Perhaps he makes this point there -- or perhaps Rick and Dan cover it in their casebook -- but hasn't the Supreme Court pretty much already held, in Brown v. Hartlage, that false campaign speech can be punished only if, at the very least, the speech would be subject to suit for defamation in the non-campaign context, pursuant to all of the constitutional limitations that have been imposed on such liability from NYTimes v. Sullivan on down?  (Indeed, the Court in Brown fairly implied that the constitutional protection in the campaign context might be even more stringent than the Court's defamation standards.)  If so, then merely "misleading" speech cannot be sanctioned -- actual falsehood must be shown (see, e.g., Hepps), in addition to actual malice proved by clear and convincing evidence, etc.
 
Here's the relevant excerpt from Brown v. Hartlage, 456 U.S. at 60-62:
 
 Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974). But "erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive,' " *61 New York Times Co. v. Sullivan, 376 U.S. 254, 271-272, **1533 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964), quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963). Section 121.055, as applied in this case, has not afforded the requisite "breathing space."
The Commonwealth of Kentucky has provided that a candidate for public office forfeits his electoral victory if he errs in announcing that he will, if elected, serve at a reduced salary. As the Kentucky courts have made clear in this case, a candidate's liability under ¤ 121.055 for such an error is absolute: His election victory must be voided even if the offending statement was made in good faith and was quickly repudiated. The chilling effect of such absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971). Although the state interest in protecting the political process from distortions caused by untrue and inaccurate speech is somewhat different from the state interest in protecting individuals from defamatory falsehoods, the principles underlying the First Amendment remain paramount. Whenever compatible with the underlying interests at stake, under the regime of that Amendment "we depend for ... correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., supra, 418 U.S. at 339-340, 94 S.Ct. at 3006-3007. In a political campaign, a candidate's factual blunder is unlikely to escape the notice of, and correction by, the erring candidate's political opponent. The preferred First Amendment remedy of "more speech, not enforced silence," Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring), thus has special force. Cf. Gertz v. Robert Welch, Inc., supra, 418 U.S. at 344, 94 S.Ct. at 3009. There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted *62 the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner's election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment.

----- Original Message -----

From: Lowenstein, Daniel

To: Election-law Listserver (election-law@majordomo.lls.edu)

Sent: Monday, February 09, 2004 2:55 PM

Subject: False and Misleading Speech

        Rick had this item in his daily message today:

       "Political Signs Skip Word, Break Law"

See this report in the Dayton Daily News. Presumably the Ohio law at issue is designed to prevent misleading speech. Is it constitutional? Bill Marshall presented a very interesting paper at the Penn symposium this weekend on the constitutionality of regulating false campaign speech, and the arguments for regulating false speech could perhaps be extended to misleading speech as well. I have always been skeptical of laws regulating misleading speech.

        Rick did not specify the facts.  As I understand the facts from the article, a couple of candidates distributed signs consisting of the candidate's last name on one line, and the office he is running for on a second line, such as the following:

                                Lowenstein

                                Dog-Catcher

        The contention is that this is false or misleading, because it represents that Lowenstein IS Dog-Catcher, when he is merely running for the office.  Ohio has a statute barring a candidate from representing that he holds an office when he does not.

        I believe this situation exemplifies the folly of trying to ban misleading OR false speech.  I don't think most people would look at that sign and believe it asserts that Lowenstein is Dog-Catcher.  Not, at least, if they know there is an election for Dog-Catcher coming up.  If they don't know that, they probably would not have much of an idea at all about what the sign means, and probably would not care. 

        It seems to me that this sign is either false or not false, but it is not misleading.  The question is one of interpretation.  Either it says that Lowenstein is Dog-Catcher, or it does not.  If it does it is false, and if it does not, it is neither false nor misleading.  I would call a statement misleading if it is true but contains an implication that is not true.  Whether or not you agree with this way of distinguishing false and misleading claims (and I am not sure that it is the best way to do so), the important point is that any regulation that attempts to ban either false speech or both false and misleading speech is going to run into hopeless problems of application.

        Nearly twenty years ago, I did a search for cases applying such statutes in the states that have them.  I found only one case in which an appellate court ruled against the candidate's speech.  That was an Oregon case in which the candidate had been a member of the county board (or whatever they are called in Oregon).  Her term had run out and because of redistricting and staggered terms, she had to wait a couple of years to run again in her new district.  In that election, she used advertising in which she asked to be re-elected.  The Oregon court ruled that her use of the word "re-elect" constituted a false claim that she was currently a member of the board.

        In my opinion, that was a permissible use of the word "re-elect."  The candidate had been elected previously, after all.  More importantly, it seems obviously unacceptable that courts should second-guess candidate's speech in such a manner.  This form of regulation is not going to clean up campaigns (which aren't in that much need of cleaning up, anyway).  It will cause a lot of unfairness.

        As for Ohio's problem, they can solve it easily by designating on the ballot whether a candidate is an incumbent.

            Best,

            Daniel Lowenstein

            UCLA Law School

            405 Hilgard

            Los Angeles, California 90095-1476

            310-825-5148