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A Bit More on the Obama "Truth Squad" in Missouri:

(1) Commenter John_R points to a statement from one of the prosecutors mentioned in the news story, who says that "As a citizen, I believe that elections should be about issues. I also have enormous respect for our First Amendment and freedom of speech. My sole purpose in participating in this initiative is about getting truthful information to the voters. This has never been or never will be about prosecuting people."

(2) The question, is what the source is for the television station's saying that the prosecutors and sheriffs "also say they plan to respond immediately to any ads and statements that might violate Missouri ethics laws." Recall that, as I mentioned in my post, this was the narrator's statement, rather than something come out of the mouth of a prosecutor or a sheriff. Did the station misunderstand what was going on? Or did at least some sheriffs or prosecutors in fact say that they plan to focus on allegedly illegal ads, presumably by using their law enforcement authority? (If so, did they say it themselves, or were they responding to a TV station question, and what exactly did they say?)

(3) I should note that if the prosecutors or sheriffs did threaten enforcement of Missouri ethics laws — which I take it refers to election laws — here, it appears that Missouri election law generally doesn't ban false statements in campaigns, and though it bars false designations of who sponsored an ad, it apparently applies only to state and local campaigns, not federal ones. (Thanks to Rob Wechsler for pointing this out.) If that's right, then even if the prosecutors or sheriffs made general statements of the "we will evenhandedly enforce election laws against people making false statements of sponsorship" variety, they would be misstating their power on this subject. But again that all depends on what the sheriffs or prosecutors (or some subset of them) actually said on the subject.

(4) Some commenters suggested that the prosecutors and sheriffs are still at fault for implicitly threatening prosecution. The difficulty is again that it's not clear just what the prosecutors and sheriffs said to the TV station. The report does, as I said, suggest the risk of such prosecution, but that's the work product of the station, not the Truth Squad. It's not clear what, if any, the officials' role was in framing the report.

(5) Is it inherently threatening, though, to have law enforcement officials on such campaign organizations, especially ones that take a hard-hitting rhetorical tone? I don't think so, at least at this point in our political history. (Things might be different if state and local prosecutions of critics of political candidates were more common than they are.) And there's a legitimate reason to include prosecutors and sheriffs on such organizations, because in many places they are pretty well-known and trusted politicians, precisely the sorts of politicians that can lend their credibility to rebutting campaign allegations.

And, as the STLtoday Political Fix blog points out, the McCain Truth Squads also involve at least some law enforcement officials. A quick search uncovered the South Carolina Attorney General, and the Political Fix blog post reports that "a McCain Truth Squad in New Hampshire, formed last January, that included several public officials with prosecutorial powers, including the state attorney general."

In any case, I'd love to hear more factual information about what exactly was said, and by whom.

DangerMouse:
I don't understand the hesitation in calling a spade a spade. It's no secret that leftist radicals like to shut down the opposition. Look at the anarchists or the Code Pinkers for evidence on that. Or if you want state actors sympathetic to Obama, look at Hugo Chavez.

They might not prosecute you yet. But when Obama gets enough of his liberals on the Court, they will. Also, both politicians and commentators have said that opposition to Obama can only be explained by racism, so they'll probably use some hate speech law to throw people in jail.
9.28.2008 8:44pm
Assistant Village Idiot (mail) (www):
It seems appalling to me that prosecutors would not at least recognise they are on tricky ground here and be circumspect in their actions and comments. How can it not occur to you that a political ad is at the very heart of what "free speech" means?

It is also an amusing comparison to the brouhaha about Palin "censoring" books at the Wasilla Public Library. The outrage at that, nearly all of it based on not getting the facts and not understanding the law, spread like wildfire. This, on the other hand, an actual current questionable act that may turn out to be actual censorship, is showing up only on the right and libertarian blogosphere.
9.28.2008 9:10pm
Arkady:
FWIW, here's a take on the story by someone who claims to have been in TV news for 10 years. Also, 'live donut' is a term of art in TV broadcasting. (You can find a definition of 'donut' as used in journalism here). I'm not asserting this is question-settling, but it does offer a perspective on the story from someone with experience in the production of tv news.


I saw it last night on a Kansas City blog which twisted this twisted TV story one more ratchet to say "Obama unleashes Gestapo in Missouri".

The lead in of the story didn't match the live donut filed by the field reporter. In fact, the story was buried inside the newscast. I suspect a producer 'punched it up' to sound bigger than it really was. Having been in tv news for ten years, I'm here to say that is common.

Ya "make stories more interesting". Now of course the station's misstatements have caught Drudges eye and out it goes into the blogworld.

In fact, the report said that democratic office holders were asked to respond to false ad claims. No more. After all, anything else might fail a first Amendment test as those of us who STUDIED in school well know. We all know that sheriffs and prosecutors and county commissioners are politically elected and often run for higher office and have access to the press to straighten out bad political advertising. And there's been plenty of it this year as we all know.

SO it was sloppy journalism, typical when producers aren't supervised before what they write hits the air...and she clearly didn't understand what the story was about when she wrote the anchor lead-in before news time. [Source, comment by radioman Kansas City].
9.28.2008 9:24pm
gifted:
I recall that while people like prosecutors have immunity when acting in office, that immunity is subject to limits--they have to be following the law, and not pursuing their own agenda under color of law, or something like that.

Would the lawyers clarify that section of the code, and would it apply to this situation? If I'm arrested while carrying a sign at at rally, I'd imagine I could get a nice chunk of change.
9.28.2008 9:26pm
Smokey:
"My sole purpose in participating in this initiative is about getting truthful information to the voters. This has never been or never will be about prosecuting people."
Isn't it swell? Someone has an exclusive corner on the truth.
9.28.2008 9:30pm
Chris L:
If the idea of the "Barack Obama Truth Squad" wasn't to intimidate, why would the Obama campaign be deploying sheriffs as part of it? I can fully understand the desire to employ the assistance of prominent elected officials to quickly try to set the record straight with regard to misleading advertising. But sheriffs? When was the last time you heard your local sheriff making a prominent public statement on anything other than a highly public criminal matter? That's the nefarious part that I don't think Team Obama will be able to explain away: the use of armed law enforcement officers to police the "truth."
9.28.2008 9:31pm
MayBee (mail):
She certainly didn't make an effort to describe what the "initiative" that she got involved with sought to do. Does anybody have a good handle on what it is they meant to do to in order to get truthful information to voters?
9.28.2008 9:54pm
Bill Poser (mail) (www):

Isn't it swell? Someone has an exclusive corner on the truth.

Well aren't you special! You have the psychic ability to interpret people as meaning what they didn't say!
9.28.2008 10:04pm
Bill Poser (mail) (www):

If the idea of the "Barack Obama Truth Squad" wasn't to intimidate, why would the Obama campaign be deploying sheriffs as part of it?


Uh, because law enforcement officers are citizen like everyone else? There are fundraising campaigns that rely exclusively on law enforcement personnel. Do you really think that the intention or the effect is to intimidate people into giving? Get real.
9.28.2008 10:06pm
John A.:
I commented on the earlier post as well. The federal civil rights laws (see, e.g., 42 USC 1983) give a private right of action to persons whose civil rights are infringed by anyone acting under color of law. A local prosecutor or sheriff would certainly be acting under color of law if they attempted to use their official position (e.g., a direct or implied threat of prosecution) to intimidate a citizen from voting or participating in the political process (e.g., by sponsoring political ads). From what I've read, I think the alleged facts are enough to file a 1983 action against these elected officials and enough to get past an initial summary judgment motion since any dispute would be a dispute about the facts.

As Mike Nifong (disgraced prosecutor from the Duke lacrosse case) will tell you, prosecutors generally have no immunity for 1983 actions.
9.28.2008 10:10pm
Clint:
Is Missouri even a swing state?

This seems much less serious than the Obama campaign's reaction to the NRA's ads in Pennsylvania.

Why?

1) It came directly from the Obama campaign's lawyers, in their own written words.

2) It attempts to preemptively cut off, rather than answer after the fact, political ads during an election.

3) It implicitly threatens a sweeping abuse of executive regulatory authority by a future Obama administration.

Without more info along the lines of what EV is asking, let's not let this distract us from the clear, egregious violations in Pennsylvania.
9.28.2008 10:11pm
Lucius Cornelius:
Use of litigation to control the content of campaign ads gives me great cause for concern. Several years ago, a candidate for Ohio Governor filed for a TRO in common pleas court asking for campaign ads by his opponent to be pulled from the air. The judge issued the TRO...this was on the Friday before Labor Day. The judge scheduled a hearing on the matter at 2pm on the following Tuesday. The state supreme court acted first...it issued an order vacating the TRO at 10am on Tuesday.

Still, this gave the candidate who made the motion plenty of ammunition to use against his opponent AND it allowed him to foul up is opponent's advertising for the long weekend.

I thought this was an abuse of the legal process. I think that what the Obama campaign is doing is disreputable and that these actions should be condemned...but that won't happen.
9.28.2008 10:24pm
Bored Lawyer:

As Mike Nifong (disgraced prosecutor from the Duke lacrosse case) will tell you, prosecutors generally have no immunity for 1983 actions.


You must be inhabiting an alternative universe. Civil actions are precisely where prosecutorial immunity applies.

It does NOT apply to criminal actions nor to state bar ethics enforcement proceedings.

(Nor does it apply to sherrifs -- so they might be liable.)
9.28.2008 10:30pm
genob:
C'mon. Even if they didn't explicitly threaten prosecution for critical ads, why do you think they identified law enforcement officials as the important "citizens" in the "truth squads." Because they have some special access to media outlets in order to "set the record straight?" Of course not. It's because they have special access to the power of the state to set the perpetrators straight.

Combine this with the letter from his general counsel "threatening" FCC action regarding the NRA ad and you have a really frightening indication of what he thinks of the first amendment.
9.28.2008 10:32pm
rmd (mail):
Even if they didn't explicitly threaten prosecution for critical ads, why do you think they identified law enforcement officials as the important "citizens" in the "truth squads."

As far as we know, the only people who identified those "two high-profile prosecutors" as "the important 'citizens'" in the truth squad are KMOV. We don't know whether that's because the campaign put them forward, or they put themselves forward, or KMOV picked them out.
9.28.2008 10:53pm
jbvv (mail):
Again, no evidence that there was anything at all improper going one here, but now we have two posts on the VC spreading this anti-Obama rumour.

But it allows wingnuts to post things like this:

I don't understand the hesitation in calling a spade a spade. It's no secret that leftist radicals like to shut down the opposition. Look at the anarchists or the Code Pinkers for evidence on that. Or if you want state actors sympathetic to Obama, look at Hugo Chavez.
9.28.2008 10:59pm
RPT (mail):
Is this a joke? After years of a politicized Justice Department, and multiple prosecutions for political advantage, some of which resulted in incarceration, such as Gov. Siegelman, some conservative posters, whose ideological adversaries were the objects of such prosecutions, are afraid of lawsuits? You cheered when the Republican administration went after Democrats, and you are now worried about these reports? There is no reason to treat these comments as serious.
9.28.2008 11:55pm
JeremyR (mail):
Just FWIW, as a resident of St. Louis, I'll just point out that one of the people involved in the truth squad, the sheriff of Jefferson County, is widely considered to be very corrupt and heavy handed. It's easy to expect the worse from him, since that's pretty much what he has done.
9.29.2008 12:01am
Pierre Owner Bouncer Pink Flamingo Bar & Grill (www):

Again, no evidence that there was anything at all improper going one here, but now we have two posts on the VC spreading this anti-Obama rumour.


So there was no evidence that the Obama campaign did its best to stop NRA ads from being aired?
9.29.2008 12:04am
Smokey:
Poser:
Well aren't you special! You have the psychic ability to interpret people as meaning what they didn't say!
What, are you deluded?? [Don't answer that!! Take the 5th!]

The actual quote:
"My sole purpose in participating in this initiative is about getting truthful information to the voters."
So, to repeat: someone claims to have an exclusive corner on the 'truth.'

See, it's that condescending liberal attitude that grates on normal folks.
9.29.2008 12:05am
Bama 1L:
From what I've read, I think the alleged facts are enough to file a 1983 action against these elected officials and enough to get past an initial summary judgment motion since any dispute would be a dispute about the facts.

What injury has been suffered?
9.29.2008 12:07am
Patrick22 (mail):
Wow, two posts based on hearsay and dozens of comments taking things even farther. Can we have an actual quote from an attributed source?


I should note that if the prosecutors or sheriffs did threaten enforcement of Missouri ethics laws


What is that? Did they or did they not say something? Do you have any idea of what they actually said? If there even is a "they." Everything in your two posts is hearsay and hypotheticals. This site is quickly degenerating the closer we get to the election. Whatever happened to evidence and logic?


The difficulty is again that it's not clear just what the prosecutors and sheriffs said to the TV station


I would suggest you find out what was said by whom; or if even anything was ever said. You've made several allegations against the Obama campaign in your two posts that don't seem to be supported by anything.
9.29.2008 12:08am
24AheadDotCom (mail) (www):
My newly-created list about BHO v. First Amendment currently contains eight items. Only the first two - including the MO story - are questionable. The other six are clearly documented. The MO case might be overstated, but things like it are clearly part of a pattern.
9.29.2008 12:46am
TalkingHead:
Is there no little Hatch Act in Missouri? It strikes me as odd that state employees could advertise themselves as affiliated with one political party's campaign. That itself would be a violation of an election law. Go prosecute yourself!
9.29.2008 1:10am
Eugene Volokh (www):
Jbvv, Patrick22: A story by a seemingly reputable news outlet alleged that sheriffs and prosecutors were going to respond to ethics law violations. I pointed out that it's not clear whether the outlet is correct in this, since the statement was by the narrator; but it seems quite plausible that the TV station had something to go on. That strikes me as eminently worth noting, while at the same time noting the reasons to be unsure about what exactly is going on.

TalkingHead: Recall that these state employees are themselves elected officials, who are publicly affiliated with a particular party. I'm not up on the details of Missouri election law, but it seems to me quite normal for such officials to participate in helping elect fellow members of the party, as well as in helping elect themselves -- that's the way party politics often works, and quite properly so. But of course if you can point me to contrary Missouri rules, I'd love to hear about it.
9.29.2008 1:38am
Constantin:
Is this a joke? After years of a politicized Justice Department, and multiple prosecutions for political advantage, some of which resulted in incarceration, such as Gov. Siegelman, some conservative posters, whose ideological adversaries were the objects of such prosecutions, are afraid of lawsuits? You cheered when the Republican administration went after Democrats, and you are now worried about these reports? There is no reason to treat these comments as serious.Siegelman is a crook, and the only allegations of a Rovian conspiracy were made by a tinfoil hat wearing kook.

Who are the other prosecutions you reference? Scooter Libby?
9.29.2008 1:42am
theobromophile (www):
RPT: the Volokh Conspiracy is a libertarian, not a Republican, blog. While there may be people who are all for suppression of their opponents' speech, but not for their canddiates', you're going to be hard-pressed to find those people 'round these parts.
9.29.2008 1:56am
JAL (mail):
Arkady's source says: We all know that sheriffs and prosecutors and county commissioners are politically elected and often run for higher office and have access to the press to straighten out bad political advertising.

What does that mean ... "have access to the press to straighten out bad political advertising" ??

Is it sarcasm?

How do you suppose they define "bad political advertising" and then tell us how they can spot it, and then have the "press" straighten it out?
9.29.2008 2:05am
arbitraryaardvark (mail) (www):
Via instapundit, here's your handy official missouri truth squad incident report.
9.29.2008 2:51am
Grover Gardner (mail):
The reporter who originally filed this story has backed away from the original characterization of events.

There's no story here. This is no different from the McCain and Palin Truth Squads which employ high-level state officials, including law enforcement officials, to respond to negative attacks. The original news report appears to be careless and inflammatory.
9.29.2008 3:59am
Paul A'Barge (mail):
"I don't understand the hesitation in calling a spade a spade."

Simple:
1) Eugene is trolling for a judgeship, setting up his blog entries in an attempt to portray "balance".
2) Eugene is a lawyer.

Nuff said?
9.29.2008 5:17am
jukeboxgrad (mail):
There's no story here.


Actually, there is. The story is how outlets like NR are perfectly happy to promote allegations of "Stalinist" tactics based on extremely flimsy information.
9.29.2008 5:24am
hga:

Clint:

Is Missouri even a swing state?

Yes, e.g. Wikipedia:

Missouri (11 [electorial votes]) The Show Me State has long been dubbed the bellwether for the nation because historically it has correlated very closely with the national Zeitgeist -- with the single exception of 1956, Missouri has supported the winner of every Presidential election since 1904. The home state of President Harry Truman leans slightly Republican, and granted its 11 electoral votes to Bush in both 2000 and 2004. Despite the relative strength of Republicans in this Midwestern state, it has a strong penchant for advancing populist causes such as stem cell research and universal health care. In 2006, Missouri elected its first female U.S. Senator in Democrat Claire McCaskill. Moreover, the national mood souring over the Iraq war and a contentious gubernatorial election with a Democratic favorite in Jay Nixon make this state a strong possibility for the Democrats. Polls show McCain with a sizeable lead in Missouri.

See lots more at Missouri bellwether; "bellweather" or "weathervane", it appears to be important.

Missouri is very narrowly balanced between "Red" and "Blue". Except for an exception that proves the rule in 1956, its "popular vote was within about one and a half percent of the national popular vote margin" from 1960 to 2004; it's got classic big cities in St. Louis and Kansas City, lots of suburbs, ex-urban regions and rural ones. I live in SW Missouri, which the cultural South bulges into (although you don't have to go far in any direction to get into the cultural Midwest), and Obama's got an office here (one of 30 in the state, someone said).

He's going for every vote he can get in every part of the state, following the strategy of Senator Claire McCaskill who won 50%/47% in 2006 after losing the race for Governor 51%/48% in 2004:

Wikipedia:

On 2006-11-08, McCaskill narrowly defeated Talent. While Talent received more votes in many of the more rural areas of the state, McCaskill ran stronger there than she had in the 2004 Governor's race. Also, she again had a large majority over Talent in the St. Louis and Kansas City metropolitan areas.
9.29.2008 5:59am
lonetown (mail):
Well it does sound like a miss-reporting in a way but clearly a chilling message was being sent. Especially when one considers that they have no real power to stop political advertising for ethics or anything.

What can be their purpose other than to send a chilling message?

I find that offensive. I think they should resign from their office.
9.29.2008 6:51am
davod (mail):
"Is it inherently threatening, though, to have law enforcement officials on such campaign organizations, especially ones that take a hard-hitting rhetorical tone? I don't think"

Isn't this what the Republicans get attacked for everytime they mention they will enforce the election laws.
9.29.2008 7:15am
Moneyrunner43 (www):
Davod,

Isn't this what the Republicans get attacked for everytime they mention they will enforce the election laws.


Why yes, they are. It's called voter suppression and the DOJ had a special meeting on it earlier this year. Of course it's only called voter suppression if it's done by Republicans. Any Republican, not just ones carrying guns and wearing badges. If it's done by Democrats there's nothing to see, just move on.
9.29.2008 8:33am
Richard Aubrey (mail):
Is it a sheriff's job to tell me what the truth is?
9.29.2008 8:56am
byomtov (mail):
the Volokh Conspiracy is a libertarian, not a Republican, blog. While there may be people who are all for suppression of their opponents' speech, but not for their canddiates', you're going to be hard-pressed to find those people 'round these parts.

I don't disgaree with your second sentence, but I think the first is not strictly true. Certainly some of the posters are clearly Republicans. IIRC, both EV and OK are affiliated with the McCain campaign, and we've certainly seen plenty of partisan posts from others.
9.29.2008 9:24am
A.W. (mail):
One guy backing off doesn't erace it. I am starting to get genuinely worried that Obama is America's Hugo Chavez. Scary thing is, to the far left, that would be a selling point.

Aaron
9.29.2008 9:51am
__________:
"Is it a sheriff's job to tell me what the truth is?"

No. The job of law enforcement is to assist prosecutors in obtaining a conviction.
9.29.2008 9:58am
Richard Aubrey (mail):
____________:

Actually, it was a rhetorical question.

That some sheriffs think it's part of their job description is worrying.

Sheriffs are elected officials. Thus, like Twain's auctioneer, they can be trusted never to tell a lie unless absolutely convenient.
9.29.2008 10:17am
martinned (mail) (www):
Am I the only one who thinks that, with the amount of lying cheating and swiftboating going on in recent years, the US needs more "truth squads", not fewer? Surely there should be a way to sort such a thing out, without allowing partisanship in? Defamation suits would have traditionally served this purpose, but between NYT v Sullivan and the general political fallout associated with such a suit, that has become completely impossible.

I realise that the theory of the first amendment is that the truth will surface from the mayhem in the end, but anyone who believes that in this day and age is deluding themselves.

So having "truth squads" cry foul for the most egregious cases seems reasonable. In the same vein, I don't see what would be so awful about a state creating a procedure for political candidates to put patent untruths in front of a judge and jury, so as to discourage lying at least a little bit.
9.29.2008 11:30am
cjwynes (mail):
I've met both of these prosecutors, and one of them is the current president of the Missouri Association of Prosecuting Attorneys. I would be a little surprised that either of them would say or do something so clearly demeaning to the dignity of the office of prosecuting attorney. I talked to a prosecutor who knows them better than I do, and he strongly doubted they could have said anything like what was reported. I hope very much that the report took them wildly out of context.

It never would have occurred to me that I could prosecute anything connected to a federal election, and that's the sort of live wire I wouldn't dare to touch even if I could.
9.29.2008 11:30am
Richard Aubrey (mail):
martinned.
You apparently missed the point. The point is the power of the state behind one version of truth; Good. Bad. No opinion.
9.29.2008 11:41am
Jim Durbin (mail) (www):
For comparison, imagine a Republican prosecutor announcing to the media that local sheriffs should keep their eyes out at polling stations for people they suspect of vote fraud.

Imagine the outcry.
9.29.2008 11:42am
Grover Gardner (mail):

Well it does sound like a miss-reporting in a way but clearly a chilling message was being sent.


Yes, by the news people who scripted the story.


Especially when one considers that they have no real power to stop political advertising for ethics or anything.


NO ONE is quoted as saying this was ever the intent. NO ONE. This is an implication cast by the reporter alone.


One guy backing off doesn't erace it.


Erase what, Aaron? What? What is that has to be "erased," other than the alarmist spin the reporter put on the story, which is backed up by absolutely nothing said by those interviewed? Please tell us.
9.29.2008 11:47am
martinned (mail) (www):
@Richard Aubrey: The power of the state isn't the prosecutors and sherriffs, but judges and juries. Obviously the threat of prosecution can scare people into silence in an unconstitutional way, but we're talking about a national presidential campaign here. I don't think they're very easily scared, so as far as I'm concerned, "the power of the state" doesn't come into play until someone is actually arrested/prosecuted, etc. The more interesting question here is whether it would be possible, desireable and/or constitutional to create some kind of mechanism for reducing the number of patent untruths, using "the power of the state".
9.29.2008 11:49am
Grover Gardner (mail):

The point is the power of the state behind one version of truth


Tell it to the partisan, elected high-level officials in every state. The fact remains that there no story here, other than that the Obama campaign is doing exactly what the McCain campaign has been doing for months now.
9.29.2008 11:52am
Fub:
martinned wrote at 9.29.2008 10:30am:
Defamation suits would have traditionally served this purpose, but between NYT v Sullivan and the general political fallout associated with such a suit, that has become completely impossible.
Perhaps more difficult and rare.

But not completely impossible.
9.29.2008 12:51pm
Fub:
And just to clarify -- Granted that the libel suit against the Governator was (roughly) an upside down version of NYT v. Sullivan facts.

The suit was ultimately dismissed based on a stretch to fit Sullivan facts, a ruling that Miller was a "limited public figure".

But my point is that libel actions still occur from things people say in political campaigns.
9.29.2008 1:12pm
Richard Aubrey (mail):
martinned.
The power of the state is quite severe even when the threat is only implicit.
I know the attorneys hereabouts pretend not to be aware of the freezing effect of the prospect of having to spend yourself into bankruptcy to defend against a known frivolous lawsuit.
It appears they also don't think--or Martinned doesn't--that an implicit threat has any bearing on behavior.
9.29.2008 1:23pm
martinned (mail) (www):
@Fub: Yes, but in that case it was a more or less private citizen suing the candidate. The problem for Obama and McCain is that they have no good defence against lies being spread about them, except to deny, because a) they are public figures under Sullivan, and b) the political cost of starting a libel suit in the middle of a campaign is simply too high.

There are websites that try to tell truth from lie, but they inevitably get accused of bias. So why not use the legal system, ideally with only declaratory rulings (so no damages awards), in the same way that it would be used if defamation suits were still on the table?
9.29.2008 1:24pm
martinned (mail) (www):
@Richard Aubrey: No, I don't think either Presidential campaign is particularly worried about being sued "into bankruptcy". In any case, I don't necessarily have a problem with the Sullivan precedent, I just think it leaves a gap. (See previous comment, which I wrote while you wrote yours.)
9.29.2008 1:27pm
richard cabeza:
The problem for Obama and McCain is that they have no good defence against lies being spread about them, except to deny
Awwww, pity poo! Bid bag meaninies get to say things without the heel of the police state sewing their lips shut! Well, I'm sure that will all change once Obama is elected. I mean, Bush had journalists tortured and critics imprisoned, right?
9.29.2008 1:33pm
martinned (mail) (www):
@richard cabeza: First Amendment concerns are one thing, but I'm not sure why you'd be opposed to reducing the amount of lying in presidential campaigns on general principle.
9.29.2008 1:37pm
Richard Aubrey (mail):
Good G-d all effing mighty, martinned.
Can't you read?
The point of referring to the threatened bogus lawsuit was not to say the campaigns are going to be sued into bankruptcy. It was to make an example (I know. METAPHOR ALERT! EXAMPLE ALERT! maybe that will work. I doubt it.)that a threat can work even if only implicit.
Should I repeat that sentence a couple of dozen times until you get it?
So now we have martinned completely happy that partisan elected officials have the Truth and completely happy that individuals who don't think so will be threatened by the implication that they can be effed with by the powers that be.
And all on the side of Obama. Boy, that sure shocked me.
9.29.2008 1:47pm
martinned (mail) (www):
@Richard Aubrey: At the moment, these "truth squads" carry no legal stick whatsoever. The fact that law enforcement officials are involved is irrelevant, because in their official capacities there are no (constitutional) laws for them to enforce in this context. So no, I don't see the implicit threat.

As for my musings about how some sort of remedy might be created, I didn't go into specifics, except to mention a) judges and juries, and b) declaratory judgements. So we are in perfect agreement when it comes to the importance of avoiding partisan influence and/or (threats of) bankruptcy.

I'm not sure how I could have written this any clearer...
9.29.2008 1:54pm
richard cabeza:
@richard cabeza: First Amendment concerns are one thing, but I'm not sure why you'd be opposed to reducing the amount of lying in presidential campaigns on general principle.

That is up to the candidates and their supporters. I am not in favor of using any means to force silence on those groups, including shouting down radio shows. I am in favor of all means to distribute ideas and speech, including competing advertisment.

At the moment, these "truth squads" carry no legal stick whatsoever. The fact that law enforcement officials are involved is irrelevant, because in their official capacities there are no (constitutional) laws for them to enforce in this context. So no, I don't see the implicit threat.

Good for you. But here's an idea: sometimes, people do things that are either against the law or their professional code of ethics. This news report, however culpable the journalists or participants are, is chilling because we don't know what they really mean, most people wouldn't know whether the implications are legal, and nobody should be giving them the benefit of the doubt.
9.29.2008 2:08pm
martinned (mail) (www):
I am not in favor of using any means to force silence on those groups, including shouting down radio shows. I am in favor of all means to distribute ideas and speech, including competing advertisment.

How about naming and shaming? Because that's essentially what a declaratory judgement amounts to...
9.29.2008 2:12pm
richard cabeza:
How about naming and shaming?
Yes. That is exercise of speech and voluntary association. I don't consider that "no good defence." In an ideal society, it's the best defence.

Based on my lay knowledge, I know libel suits must meet certain burden of evidence in the US, and thankfully there's no way to prevent it beside the anticipation of such a suit. If one chooses to make libelous statements, it serves to tell us about him and provide the opportunity for rebuke. Once it's out there, it's up to the critical reasoning ability of each individual to make sense of it.
9.29.2008 2:49pm
Richard Aubrey (mail):
Of course there's no implicit threat when the sheriff tells you that what somebody else said was not The Truth.
Not even a lawyer would believe that, martinned. Not even a lawyer.
Not that a good many wouldn't pretend to, mind you. But nobody believes it. Not even you.
9.29.2008 2:51pm
martinned (mail) (www):
Richard Cabeza said:
Once it's out there, it's up to the critical reasoning ability of each individual to make sense of it.

And how's that working so far? AFAIK, exciting but untrue stories tend to make much more noise than their rebuttals. Not to mention that voters reason, justifiably, that the candidate would deny the story even if it were true.

@Richard Aubrey: What's the threat??? Say the Sheriff of some county goes on local TV and says that what X said yesterday is not The Truth. Obviously, such a statement carries some weight, since presumably the sheriff is a well respected member of the community, but where's the threat? What do you think the Sheriff is (implicitly) threatening to do here?
9.29.2008 2:57pm
Michael Ejercito (mail) (www):
The main issue here is that prosecutors and sheriffs, being held to a higher standard, must avoid the appearance of using police powers to support or oppose a political campaign.

Of course, prosecutors and sheriffs have in the past been able to participate in political campaigns without appearing to be using their police powers to support or oppose a political campaign.
9.29.2008 3:13pm
richard cabeza:
And how's that working so far?
Does it matter?
9.29.2008 3:18pm
martinned (mail) (www):


And how's that working so far?

Does it matter?


Usually when one is discussing whether the system could do with an improvement, the first question is whether the extant system actually works.
9.29.2008 3:23pm
Richard Aubrey (mail):
martinned

What will the sheriff do? Anything he wants to do. After the SWAT team apologizes, sort of, for trashing your house on account of they got the address wrong again, the sheriff will suggest you contact your insurance company. Nice of him.
Or, perhaps, the cops will be waiting at your favorite bar, looking for DUI prospects.
The threat is that there is nothing the sheriff need to specify. His power is so great--although after exercising it he may be reprimanded for something--that the prospect of leaving your comment on a website up after the sheriff has actually told you The Truth, your detailed yard sign in your front yard, or making speeches at various meetings will be done with some trepidation. Which is the point.

A sheriff may, legitimately, make a position plain.

It is threatening if the sheriff starts telling the public who is telling the truth and who isn't, and using his office--including employees--in the process. If a cop pulls up my yard sign, who do I call? The ACLU if it's an Obama yard sign, of course. But if it were a McCain sign?
9.29.2008 3:30pm
richard cabeza:
martinned, let me try to get to the quick: are you proposing some method of speech regulation based on the good of the voting populace, built on the proposition that the government's job is keeping the marketplace of ideas regulated in quality? That's what this seems line of argument to be leading to.
9.29.2008 3:37pm
martinned (mail) (www):
@Richard Aubrey: Wow, that's a really impressive way of making the US sound like Putin's Russia. Here I was thinking that the US was a more or less civilised country, where public officials could be counted on exercise their duties with at least a minimum of decency. I guess if sheriffs accross the country are such crooks, we'd better abolish the office altogether. After all, if they're going to use their power to intimidate political opponents, they can equally be expected to use such intimidation to extort money from their victims, or sex, or anything else they might desire. So I guess America would be better off without any kind of police force.

But seriously, you're saying that seeing a Sheriff involved in political debate makes citizens imagine this kind of abuse of power? Really? Along the lines of: You say Obama is a Terrorist Lover, the Sheriff says you're wrong, you say it again, and the next day a SWAT team is messing up your house? Why would anyone want to live in a country like that? If I were you, I'd move to Canada. (Or Montana, I suppose.)

From what I'm hearing, maybe it would be better to split up the country completely, and let the Dems and the Republicans each have a half...
9.29.2008 3:46pm
martinned (mail) (www):

richard cabeza:
martinned, let me try to get to the quick: are you proposing some method of speech regulation based on the good of the voting populace, built on the proposition that the government's job is keeping the marketplace of ideas regulated in quality? That's what this seems line of argument to be leading to.


I'm not sure if "regulated" is the word. The idea is to give the truth a better chance of prevailing in the marketplace of ideas, without implicating the 1st amendment. (On the assumption that, fundamentally, lies don't deserve/enjoy 1A protection.)

How this should be done is an open question, but what I've mused so far always involved courts, so I don't think "regulation" is the word.
9.29.2008 3:49pm
richard cabeza:
On the assumption that, fundamentally, lies don't deserve/enjoy 1A protection.

That's wrong and, to put it as mildly as possible, dangerous. Therein lies your error.
9.29.2008 3:52pm
Bruce Hayden (mail) (www):
Am I the only one who thinks that, with the amount of lying cheating and swiftboating going on in recent years, the US needs more "truth squads", not fewer? Surely there should be a way to sort such a thing out, without allowing partisanship in? Defamation suits would have traditionally served this purpose, but between NYT v Sullivan and the general political fallout associated with such a suit, that has become completely impossible.
There are a lot of problems here, but one of the biggest is that what we are talking about here, if it is true (and EV questions that) is the implied threat of state action on the part of the prosecutors and sheriffs to enforce one side of the "truth" debate.

I have no trouble with "truth squads" on each side. The problem is when state action is threatened, whether it is in the form of prosecutors and sheriffs trying to block what they view as inaccurate, or campaigns suing for what they disagree with.

At this level, the best solution to what someone considers an untruth is counter-advertising. Or, to put it another way, combating speech with speech. If an ad is demonstrably false, debunking it in another ad makes the party putting it out look deceitful. But of course, this wouldn't work for Obama here, because the ads in question weren't demonstrably false, just arguably so.

BTW, I found your use of the term "swiftboating" interesting. Hopefully, you realize that by using this term, you are admitting that you are in favor of suppressing uncomfortable truths about a candidate, instead of combating untruths? At best, some of the statements made in their first ad might be open to debate (while others were admitted to be true by the Kerry campaign). None were conclusively proven to be false. But their most devastating ads used actual footage of Kerry from 30+ years earlier, and while harmful to his campaign, cannot be claimed to be untrue - he said what he said, and it was recorded for posterity.
9.29.2008 4:00pm
martinned (mail) (www):
@Richard Cabeza: How do you figure? Sullivan limits the possibility of suing for libel on 1A grounds, but not because lies are protected, but because in the public arena it is too difficult to tell the difference between lies and truths, meaning that free speech should get the benefit of the doubt. There is a difference between a) the question of whether lies are fundamentally protected, and b) whether untruths should be to some extent protected as a practical matter so as to make sure that no one will be discouraged from saying something that is true but difficult/impossible to proove. Sullivan is based on the latter, not the former, and that is right and proper.
9.29.2008 4:01pm
martinned (mail) (www):

Bruce Hayden (mail) (www):
BTW, I found your use of the term "swiftboating" interesting. Hopefully, you realize that by using this term, you are admitting that you are in favor of suppressing uncomfortable truths about a candidate, instead of combating untruths? At best, some of the statements made in their first ad might be open to debate (while others were admitted to be true by the Kerry campaign). None were conclusively proven to be false. But their most devastating ads used actual footage of Kerry from 30+ years earlier, and while harmful to his campaign, cannot be claimed to be untrue - he said what he said, and it was recorded for posterity.


The Wiki-page on Swiftboating defines the concept as follows, which is more or less the sense in which I meant it:

"Swiftboating is American political jargon that is used as a strong pejorative description of some kind of attack that the speaker considers unfair or untrue — for example, an ad hominem attack or a smear campaign."

So the trick is to find a relatively fast, low-lawyer-cost and non-partisan method for telling the difference between "unfair" and "untrue".
9.29.2008 4:05pm
Richard Aubrey (mail):
martinned.
So you think US society is uniformly run by philosopher kings of unsullied goodness???
Boy, that sounds just as stupid as your remarks, doesn't it.
It appears from the tone of your defenses that you have decided that state regulation--using LE as necessary--is a good thing.
Well, it really didn't take all that long to figure it out.
9.29.2008 4:16pm
martinned (mail) (www):
@Richard Aubrey: One would imagine that it might be possible to agree that there is some room between "unsullied goodness" and SWAT teams breaking down the doors of the sheriff's political opponents.

How about this: if one writes the constitution and laws of a country based on the assumption that every public official and every citizen will always behave according to the worst case scenario, no laws will ever get written. Based on how you describe the power of a county sheriff, I wonder what you think of the US constitution vesting the executive power in the President of the United States? Speaking of scope for abuse of power. (And no, I'm not having a go at this president in particular.)

Some mistrust of government officials is good, but you can overdo it.
9.29.2008 4:22pm
richard cabeza:
martinned,
whether untruths should be to some extent protected as a practical matter so as to make sure that no one will be discouraged from saying something that is true but difficult/impossible to proove

That is a fine foundation for civil libel law, as I understand nearly all such laws are in the US.

That is a bad principle on which to found a nation of individuals bound by laws.

Some mistrust of government officials is good, but you can overdo it.

No. The Constitution embodies the principle of restricting government power for the very reason that it is to be distrusted. At this point, I recommend you read some of the Federalist Papers addressing type and purpose of government (it's been quite a while since I have, so I don't have any specific ones in mind).
9.29.2008 4:40pm
Richard Aubrey (mail):
martinned.
You have busted yourself. You want state protection for your views.
It would be inconceivable that you would exempt from truth squad attention a verifiable truth that you found inconvenient.

How's this for a compromise between SWAT raids and perfect wonderfulness: Having cops drive you your house slowly several times a day, one of the times being when the kids are getting off the school bus? Calling the church, identifying yourself as deputy so-and-so and asking if they're run a sex-offender registry search on you. Few people can drive more than two miles without breaking some traffic law.
And the lesson will not be lost on others who, martinned thinks, are lacking in Truth.
9.29.2008 5:05pm
anonymous koward:
I though "swiftboating" was telling "an inconvenient truth."
9.29.2008 5:08pm
martinned (mail) (www):
@Richard Cabeza: The problem with civil libel law is that the defendant has to prove that what they said is true. (Or plead some other defence.) That creates a problem for people who want to say something that they have reason to believe is true, but that they wouldn't be able to prove in a court of law. In order to protect such speech, there is the knowledge of falsehood or actual malice standard.

But imagine the following procedure:
1. A candidate for political office has a problem with something that has been said about them on the grounds that it is patently untrue.
2. The candidate applies in a court determined by law for leave to commmence an adversarial proceeding. (In a similar manner to how vexatious litigants can sometimes be compelled to ask leave before suing.)
3. The court grants leave to proceede, on the grounds that the applicant has a reasonable chance of prevailing on the merits. (Or some other standard.)
4. The candidate proves, to the satisfaction of a jury, that the offending statement was indeed a statement of fact, and that it was untrue. The threshold of proof could be balance of probabilities or reasonable doubt, or something inbetween.
5. What's important is that there will be a declaratory judgement only, and that the rules of procedure are aimed at resolving the dispute within a few days, max, and with a minimum of lawyering, so that a pro se defendant has no serious disadvantage.

How would such a thing offend the first amendment, or otherwise be a bad idea?

As for what constitutes an appropriate level of distrust in elected officials, I think the founding fathers would be the first to agree that it is important to have at least some faith in the ability of voters not to elect completely corrupt individuals.
9.29.2008 5:11pm
richard cabeza:
The problem with civil libel law is that the defendant has to prove that what they said is true.

I was under the impression that in the US the burden is on the one asserting falsehood (and damages) and not on the one accused of defamation, and based on a quick search, it seems Sullivan was instrumental in pushing it that far.

How would such a thing offend the first amendment, or otherwise be a bad idea?

What if this trial extends beyond the election? At the very least, such a trial is a monumental waste of time and money when they could instead publish their competing evidence for the direct benefit of any interested parties. Exactly why is public rebuke too ineffectual?

I think the founding fathers would be the first to agree that it is important to have at least some faith in the ability of voters not to elect completely corrupt individuals.

I don't see the connection to libel. I think you're making the assumption that without the proper laws in place, people will be fleeced by mendacious candidates. This ignores the possibility that the opposition has ample opportunity to rebuke and retort, and your scenario opens the door to abuse of the courts for political gain (if the candidates are so malicious, then this is the more troubling possibility).
9.29.2008 5:39pm
jukeboxgrad (mail):
bruce:

I found your use of the term "swiftboating" interesting … some of the statements made in their first ad might be open to debate (while others were admitted to be true by the Kerry campaign). None were conclusively proven to be false


I find your defense of SBVT "interesting." In the third ad, Gardner said this:

I spent more time on John Kerry's boat than any other crew member


That's demonstrably false. Citations here. Other problems with the ads are described there. McCain described the first ad as "dishonest."

Aside from what's in the ads, O'Neill et al told many lies. An encyclopedic reference is here.

you are admitting that you are in favor of suppressing uncomfortable truths about a candidate, instead of combating untruths


I would have more faith in your sincerity regarding the importance of "combating untruths" if you weren't speaking up to defend a group that promulgated a very long list of untruths.
9.29.2008 6:03pm
jukeboxgrad (mail):
richard aubrey:

What will the sheriff do? Anything he wants to do. After the SWAT team apologizes, sort of, for trashing your house on account of they got the address wrong again, the sheriff will suggest you contact your insurance company.


richard cabeza:

Bush had journalists tortured and critics imprisoned, right?


It's really entertaining to hear about the importance of bad things that might happen, even though they haven't happened, while also being mocked for being concerned about bad things that might happen.
9.29.2008 6:14pm
Vanceone (mail):
Look, this is pretty simple. What, exactly, is the evidence that Obama DIDN'T intend a chilling effect? His entire history and the history of his supporters points to his ready use of intimidation and attempts to avoid a fair contest in any fashion possible.

1) He legalized his opponents off the ballot in earlier campaigns of his.

2) He managed to release sealed court records on his opponent (Jack Ryan).

3) Several times this campaign, he has sent letters threatening legal action. Some to the 527 group, some to radio stations running NRA ads.

4) Official campaign calls to "drown out" opinions he doesn't agree with. See the Stanley Kurtz radio appearances and also the Freddoso radio appearances. Those were organized campaign events.

Now this? Coupled with his support of ACORN and other democrat history of voter fraud and illegal activities, such as slashing tires, stealing signs--why should anyone believe that this was just a mistake? The more astonishing thing would be if this was totally innocent.
9.29.2008 7:30pm
jukeboxgrad (mail):
ACORN and other democrat history of voter fraud


Please tell us precisely how many ACORN workers have ever been convicted for voting fraud. Also, please tell us precisely how many fraudulent votes have ever been cast as a result of ACORN's work.
9.29.2008 8:43pm
Richard Aubrey (mail):
juke.
How about how many have been fired for having been found--by others than ACORN--to have fixed up fraudulent records.
If a vote is cast, there is no way to prove it is fraudulent, since there is, apparently, nothing wrong with voting if you, 1, don't exist, and 2, live with a couple of dozen others at the city hall (your address).
9.29.2008 11:16pm
jrterrier (mail):
The idea that they would allow their official positions to be associated with their conduct is wrong. It implies that the State (in the case of the State's Attorney) or the City (City's Attorney) has officially condoned their conduct. This isn't a truth squad. It is a McCarthy, anti-democratic tactic. It is no different than the Anti-Sedition laws at issue in the Peter Zenger case that Thomas Jefferson allowed to expire. The Supreme Court in Yates v United States held that political speech that does not incite violence is protected speech. Guilt or innocence may turn on what Marx or Engels or someone else wrote or advocated as much as a hundred years or more ago.[...] When the propriety of obnoxious or unfamiliar views about government is in reality made the crucial issue, [...] prejudice makes conviction inevitable except in the rarest circumstances."

As far as the merits, the two example cited is the fact that Obama is not going to raise taxes for those making under $250,000 and that he is not a Muslim. Are you really telling me that it is a lie if someone says that it simply is illogical to believe that in light of all his promised programs, Obama is going to have to raise taxes even those who earn less than $250,000? As far as the Muslim issue, Obama on a tv interview the other day referred to his "Mulsim faith." It sounded like a slip of the tongue or a misstatement but you mean if someone wants to take that and run an ad, they can be truth-squaded? How about the comment by one of his half brothers reported in a newspaper that the half-brother thinks that Obama will be good for the Israeli people despite his Muslim background. Can't someone run an ad with that info? I think it's stupid to make it appear that being a Muslim is a bad thing but nonetheless if someone wants to make that case, this is America where we believe that the market-place of ideas is the final arbiter of the truth and that the state or its agents should not be in the business of censorship.
9.30.2008 12:52am
jukeboxgrad (mail):
How about how many have been fired for having been found--by others than ACORN--to have fixed up fraudulent records


Good point. Tell us exactly how many, and show us your proof.

If a vote is cast, there is no way to prove it is fraudulent


I guess that's your way of saying that there's no proof that ACORN's work has ever led to s single fraudulent vote.
9.30.2008 1:14am
Grover Gardner (mail):

What, exactly, is the evidence that Obama DIDN'T intend a chilling effect?


Bottomfeeder alert.
9.30.2008 2:01am
jukeboxgrad (mail):
What, exactly, is the evidence that Obama DIDN'T intend a chilling effect?


What, exactly, is the evidence that you've STOPPED beating your wife?
9.30.2008 2:23am
richard cabeza:
bad things that might happen

Actually, Bush is said to have done all these things, and be in the position to do them. You know, evil conspiracies. It's why you have bad breath in the morning.
9.30.2008 8:00am
Richard Aubrey (mail):
juke.
I'm going to offer an opportunity for an argument opponent who is operating in good faith to take me to the cleaners. Since that doesn't include you, I don't really mind.
News reports for at least five years have had ACORN being investigated and having workers fired for faking voter registration.
You know it. I know it. I'm not going to bother linking. You are goind to say, "A HA. Gotcha." Were you operating in good faith, you'd have a point.
But you aren't and you don't.
Everybody with eyes knows it's true. My point in telling you this, as so many times before, is not to prove it. My point is to tell you that you aren't fooling anybody because the facts are so widely known.
Challenging somebody to wander through googleland in order to "prove" what everybody including you know to be true is not exactly a mensa tactic.
And it's transparent as hell.
How, anyway, does one prove a vote is fraudulent? If Washington State didn't have any in the last governor's race, they can't possibly exist in the known universe.
9.30.2008 8:39am
jukeboxgrad (mail):
cabeza:

Bush is said to have done all these things


Said by precisely whom? Please let us know who said "Bush had journalists tortured and critics imprisoned." That seems to be a reference to activities inside the US.

Than again, maybe you're talking about Yazamy (and probably also some others like him). In that case, the allegation is true. Yazamy is a journalist, and a critic, and we definitely imprisoned him. He also says we tortured him, and the claim seems credible.

So please tell us who you're talking about, in your implied claim that someone has made false accusations against Bush. Do you have some specifics, or do you prefer to make vague, sarcastic claims that are composed of nothing but pure wind?
9.30.2008 9:51am
jukeboxgrad (mail):
aubrey:

I'm going to offer an opportunity for an argument opponent who is operating in good faith to take me to the cleaners. Since that doesn't include you, I don't really mind.


When you're ready to show an ounce of proof that I'm not "operating in good faith," then your words will amount to something other than pure wind.

I'm not going to bother linking.


Of course you won't. That's because the only links you have are to sources like Malkin who make a big fuss about all sorts of rumors and allegations that never amounted to anything. There have been a handful of convictions, but not nearly as many as folks like you love to imply.

the facts are so widely known


Sure they are. Just like the "facts" about how Saddam's WMD are hidden in his basement, and we just haven't looked there yet.

Challenging somebody to wander through googleland


"Wander through googleland" is what I've already done. That's how I know you have nothing. And that's why I'm calling your bluff.

How, anyway, does one prove a vote is fraudulent?


It's really hard to imagine that you're finding it hard to imagine all sorts of simple answers to that question. Like this one: make a deal with the perp which involves them confessing to casting a fraudulent vote. Or like this one: find a witness who heard the perp bragging about casting a fraudulent vote. Or like this one: find documents where people were communicating about their intention to cast fraudulent votes, and then talked about their success in doing so.

Is this really stuff you can't figure out on your own?

Let us know when you're ready to tell us how exactly many ACORN workers have been fired because they "fixed up fraudulent records." And let us know if you can prove that ACORN's work has ever led to a single fraudulent vote.
9.30.2008 9:51am