Thursday, October 18, 2012

Political speech: No protection for misstatements of official conduct.


Moderator role as gatekeeper to the integrity of the political process. Not all speech is protected just because it relates to a political topic. Protected political speech comments upon official action, but is not protected when it misrepresents what that action was.  The one in position to protect the integrity of the process at the time, before more damage is done to the public interest, who counters the misrepresentation with the record, appropriately does so:  Viva Moderator. Criticism of an official act is only protected political speech when it follows an accurate representation of it.


Candy Crowley as CNN moderator was right to correct the misrepresentation of Governor Romney as to the actual acts and words of President Obama in his response to and description of the Bengazi attacks.   Political speech is broadly protected as to comment upon official conduct, in the interest of robust discussion.  That protection, however, does not extend to misrepresentations of the conduct itself.  Where that type of false statement undermines the integrity of the democratic process, the gatekeeper appropriately sets the record straight. Crowley was a gatekeeper on behalf of protected political communication, and properly so.

  • Romney stated that it took two weeks for President Obama to characterize the attacks as terrorist attacks. 
  • The President instead (transcript supported) characterized the attacks in his first public appearance the morning after, and stated that no "acts of terror" would go unpunished, investigation underway.  
  • Terrorist attack, act of terror, Crowley saw no difference, and neither does a reasonable interpretation of language.
Compare political and commercial speech:

A.  Political Speech:  False statements of what the official conduct was, is not protected.

1.  To George Will, political speech is speech about the government (emphasis added).  http://voices.washingtonpost.com/postpartisan/2010/01/the_supreme_courts_radical_def.html.  Even George Will does not extend protection to false statements about what the government actually did. The political speech protection about the government has to be based on what actions it took, then interpret and spin forever.


2.  To the Supreme Court, political speech is a movable feast, but never extending to lies about conduct itself.

In Citizens United there is no definition about what is political speech, but there is long talk about what government can and cannot do to restrict it.  See http://www.supremecourt.gov/opinions/09pdf/08-205.pdf .  Try to read it.  It can be done.  My understandings, rough, subject to experts straightening out this citizen's making sense of a maze:
  • Political speech cannot be chilled. Check.
  • Syllabus at 1.
    • Political speech may not be banned based on the speaker's corporate identity
    • Political speech is the functional equivalent of express advocacy, an unambiguous appeal to vote for or against a candidate 
    • Political speech is central to the meaning and purpose of the First Amendment. See details at http://www.law.cornell.edu/wex/first_amendment   " *** [S]peech is itself of primary importance to the integrity of the  election process... *** (emphasis added)".  
  • Syllabus at 2
    • Restrictions on speech are subject to strict scrutiny. Check.
    • First Amendment is based on mistrust of governmental power, therefore laws cannot disfavor certain subjects or views or speakers; or favor speakers.
    • "Political speech is 'indispensable to decisionmaking in a democracy" -- and corporations shall be allowed to talk, too, even if their vast financial resources swamp the field or give, to some, the appearance of corruption.  Proving influence of a corporation over an official does not also prove that the official is corrupt.
      •  "And the appearance of influence or access will not cause the electorate to lose faith in this democracy (citation omitted)"
      • Rather than restrict the influence, go to disclosure of such and that would probably be ok
3.  Lower Courts do better on specifics identifying political speech

Indiana:  . Wells v. State (Indiana) 848 NE 2d 1133 - Indiana Court of Appeals 2006 (Barnes, J)
  • Open quote: then these, separated out
    • "The difficult question in this case is whether Wells's tirade following the stop by Trooper Brown constituted political speech.
    • "In contrast, where an individual's expression focuses on the conduct of a private party—including the speaker himself or herself-it is not political." Id. Courts judge the nature of expression by an objective standard, and the burden is on the claimant to demonstrate that his or her expression would have been understood as political. Id.
    • "If the expression, viewed in context, is ambiguous, a reviewing court should find that the claimant has not established that it was political and should evaluate the constitutionality of any state-imposed restriction of the expression under standard rationality review." Id.
Standard review would include commercial speech restrictions, other time, place, manner.

Conduct of officials, then is open season; but the integrity of the democratic process does not protect made-up stories about what that conduct was.   That act of misrepresentation of the conduct itself is voter exploitation, not voter information.

Crowley's interjection of the objective standard for the nature of the conduct appears to be fully consistent with Citzens United and other concepts. See discussion of Political Speech, and its broad protection, at  FN 1.  Political speech serves the integrity of the democratic process. The moderator is the gatekeeper to that integrity.

B.  Commercial Statements.  False statements about what an official's conduct was is commercial speech, subject to more limited protections.

 Lateral Pirhouette into Commercial Speech:

What protection, then, does a mischaracterization of official conduct get, if anything?  A reasonable conclusion is to find that mischaracterizations, lies, about the actual, objective action taken becomes not political speech, but commercial speech:  undertaken to sell.  Then the commercial standards apply.

Commercial speech gets qualified protection, focused on the economic interests of speaker and potential buyer, and subject to charges of misrepresentation and the like. See Network Abuse Clearinghouse on commercial speech at http://www.abuse.net/commercial.html.  Reasonable puffing is to be expected in commercial speech. Buyer beware to that extent, and to the extent that any regulatory agencies are getting sleepy. There is a right to receive information (consumer) and a right to communicate (seller).  Is selling a position a commercial transaction?  Benefits are received.  Is that commercial value.  Look to a "reasonable fit" between any asserted governmental restriction on commercial speech, and the demonstrable and legitimate government interest.

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