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.

And yet Ohio has a false statements statute 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.

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:

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.

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.

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.

A Columbus Dispatch op-ed piece 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.

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 student note from 2004 for more on the constitutional issues involving the Ohio statute).

Despite what I said about honesty and government ethics, there are two provisions in the City Ethics Model Code that deal with false statements. One, §100.21, 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.

The other provision, §100.19, 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 earlier blog posts on this).

Also check out a 2008 blog post on truth-telling, for a different approach.

Robert Wechsler
Director of Research-Retired, City Ethics

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