Legal Commentary

Thanks for Dan for what I think is my third stint on Prawfs. Perhaps one of these times I'll get it right.

I also blog at our Marquette University Law School Faculty Blog, the Manhattan Institute's Point of Law and on my personal blog Shark and Shepherd. I am teaching a new course in Election Law and have been preparing a class on the extent to which the state may regulate the content of campaign speech. Is there a constitutional right to lie? One's initial reaction is that, given the New York Times v. Sullivan line of cases, there cannot be. Shouldn't the state be able to sanction - even if it may not enjoin - false speech made with knowingly or in reckless disregard of its truth or falsity? At least one state supreme court (Washington) has said "no." Without the additional interest in protecting reputation, the state's interest is not sufficiently compelling to warrant the restriction of otherwise protected speech.

While I am skeptical that such an approach will ever carry the day, how does one determine - in the context of political speech - just what is false. Much of our political advertising consists of literally true statements that are carefully crafted to give a false impression. Think, in the last cycle, of ads that accused Barack Obama of supporting "sex education" for kindergartners or claiming the John McCain was going to make middle class people pay taxes on their health care benefits. Both claims were, in one sense, true but conveyed an impression that was false.

To some, I think it would seem almost axiomatic that only "literally false" speech can be sanctioned, somewhat akin to what I take to be the law of perjury. Yet, to others, this is an overly cramped reading of laws prohibiting false campaign statements and overly solicitious first amendment protection.

But what, I wonder, would be the taxonomy of lies that would permit more aggressive policing of campaign speech? We all have a conception of intellectual honesty but can it be a distilled to a legally enforceable rule without chilling too much protected speech? Should the state be able to sanction speech that a candidate intends to be - or knows - is misleading? Would requiring that a false statement also be defamatory help us ease questions of actual malice? It is not clear how.

The issue doesn't arise often, but its hardly hypothetical. Here in Wisconsin, a state legislative candidate used a criminal statute prohibiting knowingly making false statements about a candidate in order to influence voters to obtain an ex parte Friday afternoon restraining order halting the broadcast of an ad claiming that he supported a health care plan that would substantially increase taxes. All of this on the weekend before the election. The Court of Appeals eventually stayed the order and ordered dismissal of the complaint, but the damage was done.

Although judicial elections raise some special issues, our state has also seen disciplinary proceedings against a successful candidate for the state supreme court who ran an ad that while some might say is literally true, was, in the view of many (including me) misleading. While I don't believe that the ad is the measure of the man, it does raise some difficult questions. The ad suggested that the incumbent had "found a loophole" for a convicted rapist who had gone on to rape again. The fact of the matter was that the incumbent, not as a judge but as a lawyer, had made an ineffective assistance argument on behalf of a client convicted of sexual assault. The argument was accepted by the Wisconsin Supreme Court but held to be harmless error. The client went to jail. He offended again, but only after being released on his original sentence.

Not a good ad. But what remedy?