If the Killian letters (the ones that purport to relate to aspects of President Bush’s National Guard service) are indeed forged, the forger might be criminally prosecuted.
My sense is that most forgery statutes don’t apply to frauds aimed at influencing votes, rather than to getting money or property or the like. I might be mistaken, but that’s what my tentative looking around suggests. Nonetheless, I’ve found at least two statutes (one with the help of reader William Modahl, who also raised the broader question for me) that specifically do prohibit election-related frauds:
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NH Rev Stat 666:6: “Any person who shall, without authority, sign the name of any other person to any letter or other document, or falsely represent that any other has written such letter or document, knowing such representation to be false, for the purpose of influencing votes, . . . shall be guilty of a misdemeanor.”
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Ohio Rev. Code § 3517.21: “No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign . . . [f]alsely identify the source of a statement, [or] issue statements under the name of another person without authorization.” [R.C. § 3517.992 makes this a misdemeanor.]
Of course, the forgery likely wasn’t done in New Hampshire or Ohio. But my sense — again, tentative — is that because the forgery was likely an attempt to influence (among other things) elections conducted by New Hampshire and Ohio of Hampshire and Ohio presidential electors, those states would indeed have jurisdiction to try the forgers. If any jurisdiction experts can tell me I’m wrong, please do.
But what about the First Amendment? The Court has generally suggested that knowing falsehoods lack constitutional value, and thus can be punished. Knowing falsehoods about the government, however, seem to be categorically protected even though they’re deliberate lies (see New York Times v. Sullivan); and at least one state court has struck down a general ban on knowingly false statements in election campaigns, theorizing that the First Amendment exception isn’t for lies generally, but only for specific kinds of lies, such as libel, fraud, perjury, and the like. See State ex rel. Public Disclosure Comm’n v. 119 Vote No! Committee, 135 Wash. 2d 618 (1998).
On the other hand, courts have upheld the Ohio bans on knowingly false statements in election campaigns, see, e.g., State v. Davis, 27 Ohio App.3d 65 (1985); Briggs v. Ohio Elections Com’n, 61 F.3d 487, 494 (6th Cir. 1995). And this false statement seems to be a false statement about a particular person (whether or not it’s actually libelous), which would make it pretty clearly unprotected both under the libel cases (e.g., New York Times v. Sullivan) and the false light cases (e.g., Time v. Hill). Under normal tort law rules, the statement might or might not be actionable; but I think that the First Amendment doesn’t impose any constitutional barrier to punishing it.
Note that the knowledge requirement means (quite rightly) that if CBS was the unknowing victim of the fraud (if, of course, there was a fraud), it and its reporters wouldn’t be criminally liable.
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