A Supreme Court opinion from earlier this summer should send a message to Nevada judges to butt out of election campaigns.
The court reversed and remanded a case out of Ohio that involved a law making it a crime for any person to “[p]ost, 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” during the course of a political campaign.
Just weeks earlier a Nevada judge forced a state Senate candidate in the Republican primary to stop running a television commercial saying his opponent was a supporter of Harry Reid.
The judge wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.” Being associated with our senior U.S. senator can do that.
In the Ohio case, a group called the Susan B. Anthony List attempted to erect a billboard during the 2010 election season criticizing Rep. Steve Driehaus for voting for ObamaCare and thus supporting taxpayer-funded abortion. Driehaus got the Ohio Elections Commission to threaten the billboard company and the billboard was never posted.
Susan B. Anthony List sued, saying the law abridged its First Amendment rights.
Considering ObamaCare dictates the coverage of abortifacients, the statement about tax-payer funded abortion might well be considered true by many.
Just as Nevada state Senate Republican primary candidate Gary Schmidt’s claims about opponent Ben Kieckhefer were not proven untrue merely by the absence of Kieckhefer’s name on a list of Republicans for Reid. No one has found any evidence he supported Reid’s opponent. Kieckhefer at the time also told a newspaper reporter he intended to support Reid backer Bill Raggio’s bid to retain a Republican leadership position even though Raggio had openly supported Democrat Reid over Republican Sharron Angle.
Truth in an election campaign is not something for a commission or a judge to decide. That is for the voters to determine.
Justice Clarence Thomas noted in the Susan B. Anthony opinion, “The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the ‘practical effect’ of the Ohio false statement scheme is ‘to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.’”
Nevada has been there and done that and has the scars to show for it.
In 1997, Raggio in one of his famous fits of pique managed to get the Legislature to pass a law giving the state Commission on Ethics the power to act as a “truth squad” and go after anyone who dared to utter anything the commissioners deemed a falsehood about someone seeking public office.
It remained on the books for eight years until Nevada federal Judge Lloyd George did the right thing for the wrong reason. George ruled in Nevada Press Association v. the Nevada Commission on Ethics that preserving “the integrity of the election process (is) a compelling, legitimate interest that can support the government’s regulation of false statements.”
Wrong! It is the job of the voter to determine what is false.
The only case out of 21 heard by the “truth squad” — including one involving a Wendover newspaper editor — that resulted in a fine was one against then-state Sen. Bob Beers. The panel found “every factual statement made in this portion of the mailer is true” but that those “facts” left an impression his opponent might have committed arson. Beers refused to pay the $5,000 fine and was one of the plaintiffs in the federal case.
Judge George tossed the law, not because it blatantly folded, spindled and mutilated the First Amendment, but because it violated the Due Process Clause of the 14th Amendment. Someone accused under the law was given only two days to respond to notice of violation, there was no requirement that the accused even be presented evidence prior to a hearing, not even a requirement that the accused be shown the accusation — a virtual kangaroo court with Kafkaesque overtones.
George did concede that the law could have a chilling effect on free speech, writing, “A person will be more likely to engage in self-censorship if he or she perceives that the procedures to that speech are inadequate.”
There is no requirement in the Constitution that people must defend their speech. It is up to others to reply with equal measures of free speech and win in the court of public opinion, not the courts.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.