False campaign speech and the First Amendment.

• Author: Marshall, William P.
• Position: Symposium: The Law of Democracy

Although campaign reformers may believe otherwise, it is not only the money in campaigns that is problematic. Campaign speech can also threaten the integrity of the electoral process. It can be misleading, manipulative, offensive, defamatory, and, in the case of judicial campaigns, unethical. It can distort the issues, distract the voters from making informed decisions, inhibit voter turnout, and alienate the citizenry. Its effects on the political system can be as corrosive as the worst campaign finance abuses.

Currently, a number of legal sanctions are available, at least in theory, to redress excesses in campaign speech. These sanctions include individual defamation and privacy actions for damages and state unfair campaign practice restrictions that directly penalize the dissemination of false and misleading campaign speech. In addition, there are other types of extant or proposed campaign regulations, such as those requiring certain types of disclosure for so-called negative ads, or those requiring the candidate herself to appear on her campaign's paid advertising, aimed at improving the content of campaign speech. As with campaign finance regulations, however, restrictions on campaign speech raise difficult constitutional issues.

Thus far, the Supreme Court's approach to campaign speech regulation has been erratic at best. Some cases suggest that First Amendment review in this area should be especially stringent. As the Court has stated, the First Amendment has its "fullest and most urgent application [in] campaigns for political office." (1) Other cases, however, suggest precisely the opposite, i.e., that the role of the First Amendment is less complete in its application to campaign speech restrictions than it is in other areas. (2) Accordingly, the Court has at times upheld restrictions on campaign speech where comparable prohibitions on noncampaign speech would have been struck down. (3)

This inconsistency, while certainly not laudable, is at least understandable. The concerns on both sides of the campaign speech restriction debate are particularly powerful. On one side, unchecked excesses in campaign speech can threaten the legitimacy and credibility of the political system. On the other, regulating campaign speech is problematic because of the serious dangers and risks in allowing the government and the courts to interfere with the rough and tumble of political campaigns. Courts and commentators are therefore to be excused if they cannot find easily discernible solutions to this conflict.

Undeterred, this paper nevertheless examines the constitutional issues surrounding campaign speech regulation. The inquiry is timely. McConnell v. FEC, (4) the Court's most recent foray into the constitutionality of campaign finance regulation, should have a significant impact on issues pertaining to the regulation of campaign speech. (5) At the same time, the debate over campaign speech restrictions may also have implications for McConnell. One of the more intriguing aspects of the McConnell decision is the extent to which it relies on rationales equally applicable to campaign speech regulation as to campaign finance restrictions. Analyzing the issues surrounding the regulation of campaign speech may then be as useful in assessing the wisdom of McConnell as it is in evaluating the merits of the campaign speech issue itself.

In order to provide focus, this Article will concentrate on a particular type of campaign speech regulation, specifically restrictions that sanction the dissemination of false campaign speech. Generally, deliberately false statements have been held not to raise First Amendment concerns, (6) while the dissemination of false statements has been considered to be exceptionally damaging to the integrity of the electoral system. (7) The regulation of deliberately false campaign statements thus presents the case for the regulation of campaign speech in particularly stark form.

Part I of this Article introduces the subject by discussing a recent case in which a candidate was sued for running a campaign advertisement that purportedly included a false assertion of fact. (8) Part II presents the legal and policy issues underlying the question of whether deceptive campaign speech should be regulated. Part III compares the reasons for and against the regulation of deceptive campaign speech with the arguments for and against a particular type of campaign finance regulation, the prohibition of corporate campaigns expenditures, (9) and contends that the differences are not so substantial as to justify a different result in the constitutional balance. Accordingly, the section suggests that because McConnell upheld restrictions on corporate expenditures, its implication, for better or worse, is that restrictions on deceptive campaign speech would also be upheld. Part IV offers a brief conclusion.

1. DECEPTIVE CAMPAIGN SPEECH AND THE CASE OF BOYCE & ISLEY, PLLC V. COOPER

   In his 2000 race for North Carolina Attorney General, Roy Cooper ran the following ad:

   I'm Roy Cooper, candidate for Attorney General, and I sponsored this ad. .... Dan Boyce--his law firm sued the state, charging $28,000 an hour in lawyer fees to the taxpayers. The Judge said it shocks the conscience. Dan Boyce's law firm wanted more than a police officer's salary for each hour's work. Dan Boyce, wrong for Attorney General. (10) The lawsuit referred to in Cooper's ad was Smith v. State, (11) a civil action that challenged the constitutionality of a state intangibles tax and sought refunds totaling approximately $150,000,000 for intangibles taxes paid. The specific allegation contained in the ad referred to the fact that the plaintiffs' counsel in the case requested a fee of $23,000,000 after the court had entered a judgment on behalf of a class of protesting taxpayers. Responding to this request, the presiding judge in the case stated that the amount "would yield Class Counsel a windfall payment of over $28,174.00 per hour" and that such a request "shocks the conscience of the Court." (12)

   Cooper's ad triggered a legal response of its own in the form of both a defamation action (13) and a complaint before the North Carolina Board of Elections alleging that Cooper had violated a state provision which prohibited any person from publishing derogatory reports with respect to any candidate, knowing the report to be false or in reckless disregard of its truth, when the reports are meant to hurt the candidate's chances for election. (14) Both actions were predicated upon one key false statement in the campaign ad. (15) The plaintiffs contended that the firm never "charged" the state $28,000 per hour, per the defendants' advertisement; rather, the taxpayers' counsel merely "sought" attorneys' fees from the state based on the amount of the recovery obtained. (16)

   The trial court dismissed the case on grounds that the facts as alleged did not state a valid claim for defamation, and the Board of Elections dismissed the complaint on grounds that it was true and published in good faith. (17) The North Carolina Court of Appeals held that the trial court erred in dismissing the defamation claim. (18) According to the appellate court, the claim that attorneys "charged" the state $28,000 per hour was both false and defamatory. (19) While conceding that an ad claiming that the law firm "sought" the fee would not be defamatory, the appellate court nevertheless concluded that the allegation that the law firm "charged" the fee had a different meaning altogether. As the court explained:

   Defendants' advertisement did not state that plaintiffs sought a very large fee--it stated that plaintiffs charged a very large fee. There is an important distinction between these two words, of which defendants, in crafting the text of their advertisement, were undoubtedly aware. The word "sought" or "seeking" indicates that plaintiffs submitted their request for compensation to the court. The fact that plaintiffs sought extraordinary compensation, moreover, does not imply that plaintiffs actually received such compensation. In contrast, the term "charged" or "charging" suggests that, not only did plaintiffs actually receive such compensation at the taxpayers' expense, they did so without deference to the court. Contrary to defendants' argument, we do not believe the average layperson to be so familiar with the intricacies of class-action lawsuits as to know that the courts must approve of attorney compensation in such suits. Further, defendants' advertisement did not indicate that the case for which plaintiffs purportedly "charged" the taxpayers exorbitant fees was a large class-action lawsuit. Nor did it mention the term "contingency fees." Without this vital information to lend context to the facts as portrayed in the advertisement, the average viewer could not properly evaluate the claims being made by defendants against plaintiffs. Instead, the average viewer was left solely with the following information about plaintiffs: that they (1) sued the State; (2) charged (and therefore received) $28,000 per hour to taxpayers to do so; (3) that this sum represented more than a policeman's annual salary; and (4) that a judge had pronounced that plaintiffs' behavior "shocked the conscience." (20) Cooper's ad, in short, was actionable. (21)

   From the perspective of fostering an informed electorate, the appellate court decision has much to say in its favor. Certainly, the voters would have been more informed if Cooper's ad had pointed out that Smith v. State was a class action, or that any request for attorneys' fees would have to be approved by a court. They would also have been better informed if Cooper's ad had explained contingency fees and how such fees are normally determined. And perhaps, armed with all this extra knowledge, the voters might have been in a better position to evaluate whether Dan Boyce was "wrong for Attorney General."

   For anyone who has ever been...