False Statements in Elections
Honesty, although central to ethics, is not central to government
ethics. The reason for this is that honesty, or falsity, is so complex,
it is almost impossible to define or enforce. And first amendment
freedom of speech places so many limitations on government regulation
of expression short of libel (the intentional attempt to falsely
destroy another's reputation). Life is full of mistakes
and misreadings, half-truths and kernels of truth, and these do not
constitute falsity. Honesty comes in more shades of gray than a
black-and-white movie.<br>
<br>
And yet Ohio has <a href="http://codes.ohio.gov/orc/3517.21" target="”_blank”">a false
statements statute</a> that has withstood attempts to declare it
unconstitutional (see especially DeWine v. Ohio Elections Comm., 399
N.E.2d 99, 104 (1978)). It is limited, oddly, to false statements in
campaign materials. I say "oddly," because other false statements can
be far more serious: false statements about citizens, about the
budget, or about laws and rules. It is odd also because speech in a
campaign, as a candidate for office, should be more protected than
speech as a government official, where you have a fiduciary duty to the
public you work for or represent.<br>
<br>
What is clever about the Ohio statute is how carefully it sets out
particular instances of false statement, including statements about a
candidate's education, crimes, mental health treatment, and voting
record. But this carefulness is exploded by the final prohibition:<br>
<ul>
Post, publish, circulate, distribute, or otherwise disseminate a false
statement concerning a candidate, either knowing the same to be false
or with reckless disregard of whether it was false or not, if the
statement is designed to promote the election, nomination, or defeat of
the candidate.
</ul>
This language does not correspond with the introductory paragraph of
the provision: "No person ... shall knowingly and with intent to affect
the outcome of such campaign do any of the following:" The last
prohibition not only adds a "reckless disregard" consideration. It
also effectively defines "knowingly" not as knowing about the campaign
material in which the statement appeared, a sort of knowledge many candidates can
easily say they don't have, but rather as knowing that the statement was false, which
is an entirely different thing. You can know something is false, but
not that it was included in your campaign materials. Most important, it would appear
that both sorts of knowledge would have to be proven, which is a heavy burden.<br>
<br>
That's another reason why honesty is not part of government
ethics: it's extremely difficult to enforce, and requires an
enormous amount of resources, even if you are lucky enough to have local
journalists, organizations, and gadflies doing much of the work for you.<br>
<br>
<a href="http://www.dispatch.com/live/content/editorials/stories/2010/06/22/law-…; target="”_blank”">A
Columbus
<i>Dispatch</i> op-ed piece</a> last week discusses a current case
before the Ohio elections commission, arguing that voters rather than
"government speech bureaucrats" should decide the case, because the
facts are "nuanced, complicated, and disputed." I always thought that
proceedings were intended for just such nuanced, complicated, and
disputed facts. How can each citizen be expected to determine such
facts? Needless to say, the author of the op-ed piece is a co-founder
of a major anti-campaign finance organization.<br>
<br>
As I've argued above, the principal problems with false statements laws
do not include infringement on first amendment rights, although they
may infringe, depending on how they are worded and administered (see <a href="http://moritzlaw.osu.edu/electionlaw/ebook/part3/campaign_false01.html#…; target="”_blank”">a
student
note from 2004</a> for more on the constitutional issues
involving the Ohio statute).<br>
<br>
Despite what I said about honesty and government ethics, there are two provisions in the <a href="http://www.cityethics.org/content/full-text-model-ethics-code" target="”_blank”">City
Ethics Model Code</a> that deal with false statements. One, <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC52…; target="”_blank”">§100.21</a>,
is limited to false statements relating to applications for positions.
This could be interpreted to include false statements by candidates
relating to their own qualifications.<br>
<br>
The other provision, <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC50…; target="”_blank”">§100.19</a>,
prohibits libel by government officials against citizens and, like many
libel statutes, allows for apology and for the assumption that the
false statements were intentional if there is no apology. I don't
expect most local governments to add such a provision, but it does
emphasize that false attacks against citizens, which seriously chill
public participation, are far worse than false attacks against rival
officials and candidates, or by citizens against officials. It also
places a light on the importance of apology (see <a href="http://www.cityethics.org/node/441" target="”_blank”">earlier blog posts</a>
on this).<br>
<br>
Also check out a 2008 <a href="http://www.cityethics.org/node/487" target="”_blank”">blog
post on truth-telling</a>, for a different approach.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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