The Volokh Conspiracy - Law Requiring Candidates "To Obtain and Recite, In Any ... Advertisements, the Explicit Authorization Received from an Endorser" Struck Down

by the Maine Supreme Court. Some key language:

The restriction on speech embodied in section 1014-A is not, however, limited in application to fraudulent or libelous statements made in the context of an election. Instead, section 1014-A sweeps broadly enough to prohibit the use of an endorsement that was actually made.

The fact that the unauthorized use of an endorsement is not necessarily fraudulent is amply illustrated in this case. Mowles's use of the 2004 general election endorsements of Senators Snowe and Collins in his 2006 primary campaign was, as the Commission found, unauthorized. Mowles's flyer, however, did not misrepresent the truth because it included, albeit in smaller type, the fact that the endorsements dated back to October 2004.

Today's society is no stranger to advertising that relies on fine print and other less-than-prominent disclaimers to stay within the bounds of the truth. Although the fairness of these approaches can be questioned, they are generally not, without more, fraudulent. With respect to political endorsements, there are myriad circumstances in which a candidate might publish an endorsement without the express authorization of the endorser and not commit a fraud on the public. In any event, at no point in this proceeding has the State asserted that Mowles's use of the endorsements of Senators Snowe and Collins was fraudulent.

Free speech is accorded great value in our society. Although the State need not "sit idly by and allow [its] citizens to be defrauded," "it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented." Because section 1014-A captures far more speech within its grasp than it can legitimately hold as a fraud-preventing measure, it cannot be sustained by the State's special interest in preventing false statements in an election where time does not allow for such statements to be counterbalanced by the truth. Thus, even if the State's concern regarding fraud were supported by any fact in this record, the statute is not narrowly tailored to address that interest.

	[Eugene Volokh, October 25, 2008 at 6:20pm] Trackbacks Law Requiring Candidates "To Obtain and Recite, In Any ... Advertisements, the Explicit Authorization Received from an Endorser" Struck Down by the Maine Supreme Court. Some key language: The restriction on speech embodied in section 1014-A is not, however, limited in application to fraudulent or libelous statements made in the context of an election. Instead, section 1014-A sweeps broadly enough to prohibit the use of an endorsement that was actually made. The fact that the unauthorized use of an endorsement is not necessarily fraudulent is amply illustrated in this case. Mowles's use of the 2004 general election endorsements of Senators Snowe and Collins in his 2006 primary campaign was, as the Commission found, unauthorized. Mowles's flyer, however, did not misrepresent the truth because it included, albeit in smaller type, the fact that the endorsements dated back to October 2004. Today's society is no stranger to advertising that relies on fine print and other less-than-prominent disclaimers to stay within the bounds of the truth. Although the fairness of these approaches can be questioned, they are generally not, without more, fraudulent. With respect to political endorsements, there are myriad circumstances in which a candidate might publish an endorsement without the express authorization of the endorser and not commit a fraud on the public. In any event, at no point in this proceeding has the State asserted that Mowles's use of the endorsements of Senators Snowe and Collins was fraudulent. Free speech is accorded great value in our society. Although the State need not "sit idly by and allow [its] citizens to be defrauded," "it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented." Because section 1014-A captures far more speech within its grasp than it can legitimately hold as a fraud-preventing measure, it cannot be sustained by the State's special interest in preventing false statements in an election where time does not allow for such statements to be counterbalanced by the truth. Thus, even if the State's concern regarding fraud were supported by any fact in this record, the statute is not narrowly tailored to address that interest.