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January 31, 2007
Another Pandora's Box On Political Speech

Charles Schumer and Barack Obama plan to introduce a bill today in the Senate that will impose more regulation on political speech during campaigns in order to end "deceptive" practices. The New York Times editorial board enthusiastically supports this new bill, even though it admits that the one abuse most often associated with this effort can be prosecuted under existing law:

Dirty tricks like these turn up every election season, in large part because they are so rarely punished. But two Democratic senators, Barack Obama of Illinois and Charles Schumer of New York, are introducing a bill today that would make deceiving or intimidating voters a federal crime with substantial penalties.

The bill aims at some of the most commonly used deceptive political tactics. It makes it a crime to knowingly tell voters the wrong day for an election. There have been numerous reports of organized efforts to use telephones, leaflets or posters to tell voters, especially in minority areas, not to vote on Election Day because voting has been postponed.

The bill would also criminalize making false claims to voters about who has endorsed a candidate, or wrongly telling people — like immigrants who are registered voters in Orange County — that they cannot vote. ...

The bill is careful to avoid infringing on First Amendment rights, and that is the right course. But in steering clear of regulating speech, it is not clear how effective the measure would be in addressing one of the worst dirty tricks of last fall’s election: a particular kind of deceptive “robocall” that was used against Democratic Congressional candidates. These calls, paid for by the Republicans, sounded as if they had come from the Democrat; when a recipient hung up, the call was repeated over and over. The intent was clearly to annoy the recipients so they would not vote for the Democrat.

While there are already laws that can be used against this sort of deceptive telephone harassment, a more specific bill aimed directly at these calls is needed.

Why? If the law already covers this abuse, then passing another law is not only superfluous, it creates a danger of government regulation of political speech that should be avoided, not embraced. The impulse to pass laws to punish the worst of the deceivers is understandable, but it will open a Pandora's Box of litigation that will get used to initimidate smaller grass-roots organizations into silence.

The bill allows "individuals", according to the NYT, to file lawsuits against anyone promoting what the plaintiff sees as "deceptive" public argument. While Schumer and Obama may have a high-minded opinion of the average American and his/her eschewing of courts for nefarious uses, the rest of us who live in the real world understands exactly what this will mean. Any campaign advertising or position paper will become fair game for all sorts of lawsuits, and more than likely multiple suits in courts all over the country.

And what will be considered "deceptive"? I'm certain that this law would have resulted in an avalanche of lawsuits against the Swift Boat veterans in 2004. They would have had to sink their funds into courtrooms and lawyers across the nation, defending their right to speak out by offering the considerable testimony and documentation they collected -- but that effort would have stopped them from participating in the election. The same can be said for groups like United for Peace and Justice and MoveOn on the Left. The latter briefly featured an ad equating George Bush to Adolf Hitler, which would have prompted an avalanche of lawsuits from the Right.

All of these suits probably would have resulted in dismissals, but that's not the point. A law like this eliminates all but the deepest-pocketed organizations from participating due to the sudden liabilities involved in political speech. It also sets up the government as the arbiter of acceptable and "truthful" political speech, rather than the American electorate -- a dangerous position for everyone.

Like so many reformists, Schumer and Obama want to have federal intervention to protect people from their own naiveté. That's not the proper role of the government, and especially when it comes to political speech. The best defense against deception is education and research, and the responsibility for that lies with the voters themselves.

UPDATE: Glenn Reynolds says that this is about protecting incumbents, as all such legislation is. He's right, but I think this is also about squelching the kind of grassroots organizations like the Swift Vets that can spring up to address one particular issue for a short period of time. Broad, multi-issue organizations can afford to answer mulitiple lawsuits across several jurisdictions, but smaller groups would be forced to fold the tent.

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Posted by Ed Morrissey at January 31, 2007 5:50 AM

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Tracked on January 31, 2007 6:49 AM


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