Is there any way to stop campaign lies that would pass constitutional muster?
The past election had the usual fusillade of negative ads in various forums promulgated by both parties.
But 2022’s batch included an unusual number of blatant lies.
Consider a striking illustration during the latter stages of the campaign, when the Republicans Governors Association bought $750,000 of ad time aimed against Gov. Tim Walz.
The broadcast ad stated Walz “pushed to defund our police.” It was provocative, but wholly inaccurate — and ultimately unsuccessful. In fact, Walz had often stated clearly, consistently and unequivocally that he did not support the “defund the police” movement, including the proposed Minneapolis ordinance that ultimately went down to defeat in 2021, a fate that Walz averted in winning re-election by a comfortable margin of nearly 8% over Republican challenger Dr. Scott Jensen, the beneficiary of the untruthful RGA undertaking.
The midterm lies may be a but prelude for even more falsehoods in the next election cycle.
It also raises the question of what legal devices may exist — or be created — to combat these type of fabrications that come from both parties and their candidates and surrogates.
Previous efforts to bar or enjoin such ads have met with little success. The challenges before dissemination run up against the restriction of “prior restraint,” stemming from the landmark 1931 case of Near v. Minnesota, in which the U.S. Supreme Court, in a 5-4 decision, ruled that a Minnesota statute allowing for an injunction against an offensive publication is impermissible under the freedom of expression provision of the First Amendment.
The Near proscription and later cases like the Pentagon Papers litigation 40 years later make it virtually impossible to legally restrain falsehoods. But that raises a question about whether post-publication sanctions can be imposed.
Minnesota has such a statute, similar to laws in more than a dozen other states. Under the state Fair Campaign Practices Act, dissemination of false statements in political campaigns constitutes a gross misdemeanor if those circulating them do so with “knowing falsity or reckless disregard for the truth” — the standard emanating from the landmark Supreme Court 1964 defamation case of New York Times v. Sullivan.
The most high-profile example in recent history was a GOP congressional candidate named Tad Jude, who was indicted in a case related to his 1994 race against former U.S. Rep. Bill Luther. The case was dismissed, which was then upheld by an appeals court. A federal appeals court seemed to find the law’s constitutuality dubious at best. (Jude lost that election, won and lost some others after that, went on to become a district court judge in Washington County until retiring before re-entering politics in an unsuccessful attempt seeking the Hennepin Count Attorney position last year.
But the New York Times case standard is a bit of an ill-fitting garb because that doctrine applies to civil claims for defamation, rather than criminalization of false political advertisement. Moreover, the tenet is geared toward achieving compensation for harm to reputation. But a defamation claim is hardly suited to political advertising because of the difficulty of proving that any particular ad had a determinative impact on the outcome of an election.
Minnesota formerly had a statute on the books making it a gross misdemeanor to distribute knowingly false material about a political candidate or ballot issue, but the Federal Eighth Circuit Court of Appeals wiped it off the books in a 2014 ruling entitled 228 Care Committee v. Arneson. Reasoning that the criminal measure trampled on First Amendment rights of freedom of expression, it preferred that the “citizenry, not the government …[to be] the on the falsity in the political arena,” an indulgence that might overrate the public’s ability to sift out mendacity, especially late-breaking lies entering the “arena.”
At the Federal level, the Fair Election Campaign Act of 1971, has been effectively gutted by subsequent case law, including the infamous 2010 case of Citizens United v. Federal Election Commission and later cases that subscribe to its free-wheeling principle. The FEC that enforces it — sharply-divided on partisan lines — oversees some aspects of campaigning, but primarily financial matters, not content of advertisements.
Taken together, these state and federal vehicles are of limited value attacking negative and blatantly inaccurate political ads.
The courts have not definitively ruled on whether lying in political advertisements can be subject to sanctions, including criminal prosecution.
The closest case came in a 2014 lawsuit entitled Susan B. Anthony List v. Driehaus, in which the U.S. Supreme Court, in a unanimous ruling written by Justice Clarence Thomas, ruled that a litigant may contest the applicability of the law even before it is invoked because of its potential deterrent effect of First Amendment rights. The ruling, however, did not opine on the merits of the statute, or others like it, which exist in numerous states.
Some protection for prevarication may emanate from another Supreme Court lawsuit, the 2012 case of U.S. v. Alvarez, which concerned a criminal prosecution under the Stolen Valor Act, a federal measure that prohibits lying regarding receipt of military awards and honors.
This came up locally. Tyler Kistner, a Republican military veteran, ran unsuccessfully for a second time against U.S. Rep. Angie Craig in the 2nd District. A veterans group entitled Vote Vets said in widely-circulated ads and other forums that the GOP challenger falsely represented that he had served in military “combat.”
An outside Republican group running ads boasting about Kistner’s combat experience pulled the deceitful ads.
The Alvarez case a decade ago concerned a criminal prosecution brought against a local office holder in California who falsely declared — though not during a campaign — that he was a recipient of the Congressional Medal of Honor. In another unanimous ruling, the Supreme Court said that the statute was offensive to the First Amendment in the absence of criminal intent.
That deficiency was resolved in 2013 when Congress passed and President Barack Obama signed an amendment to the Stolen Valor Act, adding a New York Times v. Sullivan-esqu clause of knowingly false or reckless disregard of the truth features to the statute. Its validity has not yet been tested in the courts.
All these ineffectual measures might invoke a different approach.
As a “laboratory” of democracy, the state could establish a neutral body, composed of bipartisan or nonpartisan members to screen political advertisements in advance.
They could prohibit them from being disseminated if they are deemed to contain objectively-verifiable patent falsehoods.
This approach would, of course, run into Near-type concerns of prior restraint if imposed by a government body. But utilizing the New York Times standard might make it more palatable and perhaps constitutionally-permissible, too.
Another variant may be to have a broadcast industry group — thus, a private party — provide oversight for pre-publication review, which would avoid aforementioned First Amendment problems. While it might not reach other forums and social media, restraints in broadcasting lies in the mass media might help curb the predilection of politicians to prevaricate.
If that doesn’t work, individual broadcast stations could be required — as a condition of licensure — to impose similar requirements to screen out false political ads.
None of these devices might be effective, but all of them could be worth consideration in light of the blatant, rampant lies of plainly false advertisement that distort elections and are a threat to democracy itself.
Minnesota could — in the exercise of its “laboratory” function — be out front as a pioneer in such an experimental endeavor.
As the Reformer reported recently, DFL majorities are trying to address another variant of politically-related lying this legislative session with a bill that would make it a crime to intentionally disseminate misinformation about voting procedures, dates, eligibility and other matters intended to impede or prevent someone from voting. The package — spurred by the 2020 “Big Lie”— would also provide criminal penalties for “deep fake” videos that use artificial intelligence to deceive voters about a candidate or otherwise influence voters.
While not directly related to more conventional campaign lying, the various measures would put Minnesota at the forefront of combatting that type of mendacity.
Mark Twain, a feline lover, observed in his 1894 book “Pudd’nhead Wilson” that “One of the most striking differences between a cat and a lie is that a cat has only nine lives.”
Al Franken captured the sentiment later with his book “Lies and the Lying Liars Who Tell Them.”
Those admonitions ought to be heeded by lawmakers and other decision-makers in grappling with the question of how to stem and sanction outright falsehoods in the political process.
*This story has been updated to reflect that the Minnesota Office of Administrative Hearings no longer considers complaints of false campaign materials.
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