Could Lies in Election Campaigns Generally Be Punished?

[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (All the posts about it will go into this thread.)] [UPDATE: The final paper has now been published by the Knight Institute.]

If I'm right that the question here is one of comparative effectiveness of different truth-finding institutions, then this might bear on how any particular kind of false statement should be classified. Here, let's consider (though just briefly) lies in election campaigns; whole articles, of course, can and have been written in much more detail about this question.

Lies in election campaigns are in some respects especially dangerous, because they often happen shortly before the election, when there is little time to respond.[1] At the same time,

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," thus has special force.[2]

And what is true of factual blunders is likely true of deliberate falsehoods as well.[3]

The cases on the subject are split, but I'm tentatively inclined to agree with the recent state supreme court and federal appellate decisions that conclude that, on balance, allowing prosecutions for such lies is too dangerous. The Massachusetts Supreme Judicial Court's 2015 decision in Commonwealth v. Lucas is the most recent articulation of the argument:

1. The proper institution for dealing with such lies, for all its flaws, is the prospect of "counterspeech" by the opponent.[4]
2. Such a statute "may be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech,"[5] through tricks such as "well-publicized, yet bogus, complaint[s] to the [governmental enforcement body] on election eve."[6] "[B]y the time of the probable cause hearing the election may well be over and the damage will be done."[7]
3. This is especially so because "the distinction between fact and opinion is not always obvious," especially in rushed decisions about whether to issue a criminal complaint. [8]
4. "[E]ven in cases involving seemingly obvious statements of political fact, distinguishing between truth and falsity may prove exceedingly difficult. Assertions regarding a candidate's voting record on a particular issue may very well require an in-depth analysis of legislative history that will often be ill-suited to the compressed time frame of an election."[9]

To be sure, even the opinions that have struck down election lie statutes on these grounds have included language that seems to express openness to some restrictions. For instance, Lucas stressed that the problems with the law were made especially severe by the fact "that anyone may file an application for a criminal complaint," so that "an individual, unconstrained by the ethical obligations imposed on government officials, will file an unmeritorious application 'at a tactically calculated time so as to divert the attention of an entire campaign from the meritorious task at hand of supporting or defeating a ballot question [or candidate].'"[10] Perhaps the result might have been different had the law only allowed complaints to be filed by prosecutors or other government enforcement officials. Still, I doubt the court would or should have come out differently in that situation, in part because such more traditional government-triggered enforcement would raise its own possible risks of selective enforcement and politically motivated prosecution.[11]

Likewise, Lucas noted that the law wasn't well-tailored to the concern about allegations that come too late in the campaign for the other side to effectively rebut them.[12] Perhaps a law focused on just false statements in, say, the last three days of the campaign might be upheld as sufficiently narrow. (Of course, it would be unlikely that the law could be effectively enforced in a way that would yield a finding of falsity before the election, but perhaps the threat of post-election criminal punishment might still be an effective deterrent.[13]) Still, on balance it seems to me that the traditional approach of candidates pointing out their rivals' lies, often supplemented by the media chiming in, is the least bad of a bad set of options.[14]

[* * *]

Monday: Could lies about the mechanics of voting (where, when, how, who) generally be punished?

[1] Many thanks to Genevieve Lakier for stressing to me the importance of time sensitivity in this context. Cf. Mills v. Alabama, 384 U.S. 214, 219–20 (1966) (striking down a statute that banned all newspaper editorials on election day, which the lower court had upheld on the grounds that, "'as a practical matter, because of lack of time, such matters cannot be answered or their truth determined until after the election is over'"); Commonwealth v. Lucas, 472 Mass. 387, 401 (2015) (discussing, though ultimately rejecting, the timing concern as an argument for banning lies in an election campaign).

[2] Brown v. Hartlage, 456 U.S. 45, 61 (1982) (quoting Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring)); Rickert, 168 P.3d at 832 (noting that, in that case, the candidate about whom lies were told "and his (many) supporters responded to [the] false statements with the truth," and that therefore the false "statements appear to have had little negative impact on [the candidate's] successful campaign and may even have increased his vote").

[3] See, e.g., 281 Care Comm. v. Arneson, 766 F.3d 774, 793 (8th Cir. 2014) (applying the Brown v. Hartlage quote to a statute banning deliberate lies).

[4] Lucas, 472 Mass. at 399; see also Rickert v. Public Disclosure Comm'n, 161 Wash. 2d 843, 855 (2007); 281 Care Comm., 766 F.3d at 793.

[5] Lucas, 472 Mass. at 402.

[6] Id. (quoting State v. 119 Vote No! Comm., 135 Wash. 2d 618, 626, 627  (1998)); see also 281 Care Comm., 766 F.3d at 789 (concluding that a statute banning lies during an election campaign "tends to perpetuate the very fraud it is allegedly designed to prohibit").

[7] Id. at 404 (quoting 281 Care Comm., 766 F.3d at 792).

[8] Lucas, 472 Mass. at 403 (quoting King v. Globe Newspaper Co., 400 Mass. 705, 709 (1987) ("it is much easier to recognize the significance of the distinction between statements of opinion and statements of fact than it is to make the distinction in a particular case")); Rickert, 168 P.3d at 829 (criticizing the "naïve[] assum[ption] that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech").

[9] Id. at 403.

[10] Id. at 403 (quoting 281 Care Comm., 766 F.3d at 790).

[11] Cf. Rickert, 168 P.3d at 831 (faulting a false election statements statute for relying on an "administrative body" that is "appointed by the governor, a political officer").

[12] Id. at 401.

[13] Some such laws might actually authorizing the voiding of election results based on lies by the winning candidate. See, e.g., Matter of Contest of Election in DFL Primary Election Held on Tuesday, Sept. 13, 1983, 344 N.W.2d 826 (Minn. 1984) (voiding an election under such a law); Cook v. Corbett, 251 Or. 263 (1968) (likewise); Watkins v. Woolas, [2010] EWHC (Q.B.) 2702, [3] (Eng.) (likewise, under English law); Lance Conn, Mississippi Mudslinging: The Search for Truth in Political Advertising, 63 Miss. L.J. 507, 519 n.49 (1994) (noting these cases); Note, Avoidance of an Election or Referendum When the Electorate Has Been Misled, 70 Harv. L. Rev. 1077, 1087 (1957).

[14] See also Hasen, supra note 18, at ch. 3. For a prominent contrary argument, see Marshall, supra note 18.