Anti-Lying Laws Give Political Pinocchios Little to Fear
By Pauline Vu, Staff Writer
If you're sick of politicians lying, well, so are they.
Legislators in Alaska, Iowa and Colorado recently proposed bills to create or strengthen laws against making false statements about candidates during a campaign.
Eighteen states have some type of law against lying about a candidate, according to the National Conference of State Legislatures (NCSL). Yet come election season, untruths about opponents run rampant and few politicians are ever punished.
That's because legislating against any campaign speech, even false speech, treads on First Amendment territory. In 1964 the U.S. Supreme Court decided in New York Times v. Sullivan that a public official who wanted to sue for libel had to prove "actual malice" - that the alleged libeling party had knowingly printed a lie, or had printed it with "reckless disregard" for the truth. Most states with political lying laws also require one or both of these standards, which are a challenge to meet.
"They're tough to enforce, that's the gist of it," said Jennie Bowser, who follows the issue for NCSL. "One component [is] the difficulty of proving these kinds of things, and then the First Amendment component is tough to get around."
In Iowa, a House committee unanimously approved a bill March 8 that would fine violators up to $2,000 for knowingly using false information about their opponents.
In Colorado, current law states a politician cannot "knowingly" make a false statement against an opponent - which violators circumvent by saying they didn't know they were spreading a lie. A bill that would upgrade the law so that candidates also cannot "recklessly" make a false statement recently passed the Senate, 26-8. Meanwhile, an Alaskan legislator proposed a bill to strengthen the state's current law against false campaign advertising by cutting the time required to investigate and increasing the election commission's power to levy fines.
In Washington state, where the fine for such offenses is $1,000 for a single violation and $2,500 for multiple violations, the Legislature is considering bills that would raise the fine to $4,000 and $10,000, respectively.
But in the name of free speech, courts either have repealed state laws or stripped them of their teeth.
In 1998 a split Washington state Supreme Court struck down the false political advertising law in a case about initiatives, saying it "chills political speech." The Legislature changed the law the following year to apply only to candidates, not initiatives.
In 2001 a federal judge declared Hawaii's Code of Fair Campaign Practices unconstitutional, and in February a federal judge questioned whether a similar Nevada law violated due process because it only allows the accused two days to respond to a complaint.
Also, the Ohio Elections Commission no longer levies fines because of a 1991 decision by the U.S. Court of Appeals. Instead, when the commission finds a false campaign ad, it has three penalty options: refer the matter to a prosecutor, send a letter of reprimand to the violator, or just let the fact the commission investigated the matter speak for itself.
The commission's biggest case involved the 1998 gubernatorial election, when it found that a television ad by Republican candidate and current governor Bob Taft against his Democratic opponent was recklessly false. But the only punishment the commission doled out was a letter of reprimand to Taft's campaign and its treasurer.
"There are times when the commission would appreciate having the ability [to fine] but...that's not an authority we have, and any kind of act by the commission like that would be declared unconstitutional," said Philip Richter, the commission's executive director.
Despite the diluting of some laws, candidates who feel slandered still try to take legal action, with varying results.
In a 2002 Washington state Senate race, Green Party candidate Marilou Rickert released a flier that said Democratic incumbent Tim Sheldon had voted to close "a facility for the developmentally challenged."
Actually, the facility, Mission Creek Youth Camp - which was a juvenile rehabilitation camp - was closed after passage of the 2002 supplemental budget, which Sheldon had voted against.
The state's Public Disclosure Commission fined Rickert $1,000, which the Superior Court upheld. Rickert has appealed to the state Court of Appeals.
She said she was surprised when the commission found against her. "I think the interpretation as to what Tim's action was with regard to Mission Creek was a matter of opinion," Rickert said. "They certainly didn't prove that I had deliberately fabricated information."
But Sheldon said he clearly showed that Rickert's action met the state's actual malice standard.
"She had all the resources to check my record," he said. "My office could tell you how I voted. We have an excellent online system...She said a lot of things that stretched the truth, but I concentrated on the one issue that I could absolutely prove in black and white...I wanted to zero in on the phrase, 'I voted.'"
Rickert later acknowledged that her statement was inaccurate, but maintains Sheldon could have done more to save Mission Creek.
"If you have a good-faith belief that what you're saying is truthful, or if you're stating an opinion, you should be able to do that without a tribunal deciding if what you said is true or false," Rickert said.
Opponents of false campaign speech law maintain that the only solution to false speech is more speech, and that an informed voting public should be the final judge of an untruth.
However, one problem with that is accusations are made in the final days of a campaign. Mississippi's law against false statements declares that in no event can someone attack a candidate's personal life or character in the five days before an election - even if the claim is true.
Laws against false campaign advertising raise other issues. "What sort of mechanism do you set up?" asked Brooks Jackson, director of Factcheck.org, a website that monitors the accuracy of politicians' claims. "I don't know how you pass a law making it a crime to utter a falsehood in a political debate without giving some government official the power to decide what's false and what's not."