Missouri Law Enforcement Officials Threatening Prosecution of People Who Say False or Misleading Things About Obama?

[UPDATE: More facts and analysis here.]

Some people have mentioned this story to me — there's been a lot of buzz about this story over the past few days — and I think there might be something troubling going on. But I think we may be lacking some important information, so let me lay out the facts as I know them, and ask readers whether they can point me to more.

As best I can tell, it all started with this report from a Missouri TV station. The report points to Missouri prosecutors and sheriffs who have joined the "Obama Truth Squad," and says "They" — referring to the prosecutors and sheriffs — "also say they plan to respond immediately to any ads and statements that might violate Missouri ethics laws." The text accompanying the report also says, "The Barack Obama campaign is asking Missouri law enforcement to target anyone who lies or runs a misleading TV ad during the presidential campaign."

Now the "plan to respond immediately to ... statements that might violate Missouri ethics laws" does sound like a threat of prosecution, since that's how law enforcement tends to respond to violation of the law. But most of the statements in the interview, including all the statements that actually come out of the sheriffs' and prosecutors' mouths, seem to focus — or at least can be very plausibly interpreted as focusing — on responding to false or misleading statements with rebuttals, the normal way such responses happen in election campaigns.

So this makes me wonder exactly what the sheriffs and prosecutors are saying about law enforcement; recall that the statement in the news story about violations of the law came from the mouth of the narrator, not one of the sheriffs or prosecutors who was interviewed. Did the sheriffs and prosecutors mostly talk about responding with counterspeech, and talked about ethics laws enforcement only in response to an interviewer question (e.g., "But what if you find actual illegal conduct — would you also take legal action?")? What kinds of violations were they discussing? Did they make the paraphrased statement in the context of promising evenhanded enforcement of election laws, or were they focusing on anti-Obama statements (which is indeed the context of the statements that were quoted)?

I am troubled by the way the statement appears in context, since it does suggest likely law enforcement targeted on critics of Obama, and perhaps the sheriffs and prosecutors should have spoken up to correct this impression, if they hadn't intended to send it. But I don't know whether they have indeed tried to say something along these lines (among all the other things I don't know, despite having listened to the broadcast and read several posts that criticized the broadcast). [UPDATE: One of the prosecutors quoted in the story has indeed said that "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."] The Missouri Governor's press release condemning the statements doesn't add much by way of detail.

Now some might argue that it's troubling whenever sheriffs or prosecutors get involved in broader political campaigns, because even pure promises of constitutionally protected counterspeech might be seen as implicitly threatening legal suppression of protected speech, or as discriminatory enforcement of otherwise valid speech restrictions. But these are elected officials, who are identified with particular political parties. As I understand it, in our political system it's normal for such officials to get involved in broader campaigns on behalf of the party, and while perhaps there should be an exception for law enforcement officials, I'm not sure that this is a settled tradition, and there would be costs as well as benefits to such a tradition.

As I said, there may well be something potentially troubling here, for instance if the prosecutors and sheriffs are threatening to enforce very broad (and perhaps unconstitutional) readings of election laws, or if they are threatening to enforce the laws only against anti-Obama speakers. But before figuring out just how troubled I should be here, I'd like to know more about what exactly the prosecutors and sheriffs said.

I'd also like to know what laws it sounds like they're threatening to enforce. My quick search couldn't find any "Missouri ethics laws" that ban false or misleading statements in a campaign. (Some states have such laws, and they have sometimes been upheld, if they are narrowly drafted to cover only knowingly or recklessly false statements, but I don't see any such Missouri laws — please let me know if I've missed some.) I did find laws that require that sponsors of paid ads supporting or opposing candidates identify themselves, and banning false or misleading identification in such ads. [UPDATE: As I note in the follow-up post, it looks like even this ban on false or misleading sponsorship identification doesn't apply to campaigns for federal office.]

I should note that Missouri apparently has no criminal libel statute (as my own quick Westlaw search confirmed), and the statement I heard in the TV segment focused on "Missouri ethics laws," not criminal libel laws. Some suggestions that the threat is of criminal libel prosecution strike me as unlikely.

So I stress again: There might well be something troubling going on, especially if the prosecutors and sheriffs haven't tried to clarify the paraphrased threat of law enforcement [UPDATE: One of the prosecutors has clarified this, as the Update above notes]. But before I know how troubling this is, I'd like to know more exactly about what they're threatening, and what the relevant Missouri laws are. If anyone has more factual details on this, I'd love to hear them.

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.