Tuesday, November 17, 2009

Lies and the Lying Candidates Who Tell Them*

* It turns out to be Al Franken.


For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.

Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.

At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.

In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?

Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?

Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.

11 comments:

Jay Bullock said...

Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true.
Lies! Actually, I have no idea what you're talking about. An example would be helpful.

More seriously:
But those allegations [. . .] are certainly subject to prosecution notwithstanding the validity of any arbitration provision.
The woman whose case inspired Franken's amendment, in fact, cannot pursue criminal charges against the fellow Americans who drugged, raped, and locked her in a shipping container to intimidate her into silence, because those actions happened in Iraq, and US-sponsored Iraqi law limits criminal liability of foreign workers there. The woman's only recourse was civil action against those who committed the crimes and the corporate entity that denied her access to care to the extent that it took a member of Congress to intervene. And yet courts kept tossing her suit because of the arbitration provisions.

The most recent appellate ruling, it seems, will allow her suit to go forward for the moment--but this is after years of pressure and pursuit and what sounds like a miserable hell for her.

Yet you suggest that Franken's amendment was unnecessary because in some idealized world what did happen in reality never should. So what should we call rejecting reality and substituting fantasy in its place to score political points?

Rick Esenberg said...

Well, if her suit can go forward, then she isn't "penalized" by the arbitration provision.

Nor is the Franken amendment limited to sexual assault, it would also include garden variety discrimination and sexual harassment claims.

Besides that, equating arbitration with "covering up" rape is precisely the substitution of fantasy for reality. It may be a less favorable forum for plaintiffs (although that is not uniformly so), but it hardly amounts to a device for covering up offenses and does provide recourse for a person in the position of the woman you refer to. Her problem is not that she can't pursue a civil remedy. It's that she wants to pursue it in a different forum. She may well have a good argument for that (I think she probably does) but to disagree or to oppose the Franken amendment because it goes way beyond the case that inspired it is demagogic.

It is, in fact, a lie, no?

George Mitchell said...

The three-judge commission got it exactly right. Whether Gableman's ad was true or not is irrelevant to the constitutional issues. Jim Doyle lied repeatedly about "balancing" the state budget, but those falsehoods remain protected speech.

Marc Eisen said...

One should be careful about defending character assassination. I’m not a lawyer. I don’t claim to know all the particulars of this case. But I don’t think either is necessary to conclude that the Gableman ad was despicable. How could anyone with a moral compass conclude otherwise? The fact that such brutalism has been mainstreamed into politics—and defended if not celebrated—demonstrates how badly the civic fabric is fraying. What a vile business our campaigns, even judicial campaigns, have become. Do you not think this corrodes the democratic spirit, makes voters cynical, and serves as a warning shot to citizens to not offer themselves up as candidates for fear their reputations will be destroyed in a lying 30-second commercial?

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