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Who We Are »
Betsy Combier

Help Us to Continue to Help Others »
Email: betsy.combier@gmail.com

 
The E-Accountability Foundation announces the

'A for Accountability' Award

to those who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. They ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up. These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions. The winners of our "A" work to expose wrong-doing not for themselves, but for others - total strangers - for the "Greater Good"of the community and, by their actions, exemplify courage and self-less passion. They are parent advocates. We salute you.

Winners of the "A":

Johnnie Mae Allen
David Possner
Dee Alpert
Joan Klingsberg
Harris Lirtzman
Hipolito Colon
Jim Calantjis
Larry Fisher
The Giraffe Project and Giraffe Heroes' Program
Jimmy Kilpatrick and George Scott
Zach Kopplin
Matthew LaClair
Wangari Maathai
Erich Martel
Steve Orel, in memoriam, Interversity, and The World of Opportunity
Marla Ruzicka, in Memoriam
Nancy Swan
Bob Witanek
Peyton Wolcott
[ More Details » ]
 
Candidates - and Educrats - Have a Legal Right to Lie to Voters
FactCheck.org: False Ads: There Oughtta Be A Law! Or -- Maybe Not. By Brooks Jackson, 06.03.2004 With all due respect, we added 'educrats' to the above sentence. Betsy Combier
          
False Ads: There Oughtta Be A Law! Or -- Maybe Not.
By Brooks Jackson
FactCheck.org, 06.03.2004

Here's a fact that may surprise you: candidates have a legal right to lie to voters just about as much as they want.

That comes as a shock to many voters. After all, consumers have been protected for decades from false ads for commercial products. Shouldn't there be "truth-in-advertising" laws to protect voters , too?

Turns out, that's a tougher question than you might imagine.

For one thing, the First Amendment to the US Constitution says "Congress shall make no law . . . abridging the freedom of speech," and that applies to candidates for office especially. And secondly, in the few states that have tried laws against false political ads, they haven't been very effective.

Bogus Psychics & Twirling Ballerina Dolls

Laws protecting consumers from false advertising of products are enforced pretty vigorously. For example, the Federal Trade Commission (FTC) took action in 2002 to protect the public from the self-proclaimed psychic "Miss Cleo," whom the FTC said promised free readings over the phone and then socked her gullible clients with enormous telephone charges. The FTC even forced a toy company a while back to stop running ads showing its "Bouncin' Kid Ballerina Kid" doll standing alone and twirling gracefully without human assistance, which the FTC said was video hokum.

Federal Communications Act

(US Code: Title 47, Sec. 315. - Candidates for public office)

(a) . . . If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section.

But there's no such truth-in-advertising law governing federal candidates. They can legally lie about almost anything they want. In fact, the Federal Comunications Act even requires broadcasters who run candidate ads to show them uncensored, even if the broadcasters believe their content to be offensive or false.

This is taken very seriously. In a 1972 case, the Federal Communications Commission forced stations in Atlanta, GA to accept a paid political ad from JB Stoner -- a self-proclaimed "white racist" running for the U.S. Senate on the National States Rights party ticket. The NAACP objected to Stoner's ad because it said the "main reason why niggers want integration is because niggers want our white women." The FCC sided with Stoner, citing freedom of speech decisions of the Supreme Court.

Stations can reject ads for any reason from political groups other than candidates. And they may reject ads from all candidates for a given office. But if they take ads from one candidate they can't legally refuse ads from opponents, except for technical reasons (such as being too long or short to fit standard commercial breaks, or if the recording quality is poor) or if they are "obscene." Rejecting a candidate's ad because it's false is simply not allowed.

So what gives? Surely the public stands to suffer more damage from a presidential candidate lying about his opponent than from a bogus psychic. Isn't the process of choosing the leader of the most powerful nation on the planet a more important matter than whether some doll really does what the TV ads show?

Yes. But . . .

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

For one thing, the First Amendment guarantee of free speech poses a big obstacle to enacting or enforcing such laws -- which it should. The very idea of self-government rests on the idea that voters -- given enough uncensored information -- can best decide who should be in power and who should not. So free speech applies first and foremost to candidates. As the US Supreme Court said unanimously in a 1971 libel case , "it can hardly be doubted that the constitutional guarantee (of free speech) has its fullest and most urgent application precisely to the conduct of campaigns for political office."

So states have found it hard to enact laws against false political advertising, and even harder to make them work.

Minnesota: The Case of the Furloughed Rapist

Example: In a 1994 House race in Minnesota, Republican candidate Tad Jude ran a emotion-packed ad against Democrat William Luther in the final weekend of the race.

It was reminiscent of the notorious "Willie Horton" ads run against Democratic Presidential Candidate Michael Dukakis in the 1988 Presidential election. In the ad, Jude cited the case of a woman and two daughters who were kidnapped and raped repeatedly over two days by a man who had been released from prison on a furlough.

The False Ad That Couldn't Be Outlawed:

Announcer: In 1990, a Minnesota woman and her two daughters were abducted and repeatedly raped over a two-day ordeal. Despite two prior convictions, the perpetrator, Daniel Patten, was out of prison on a weekend furlough.
Patten may never have been released and this crime never committed had legislation authored by Tad Jude been enacted. But Jude's bill was stopped by Bill Luther and his liberal friends in the Minnesota Senate.
Bill Luther's willingness to set violent criminals free is putting every woman in Minnesota in danger. Sending him to Congress would be a crime.

Jude's ad claimed the rapist "never would have been released and this crime never committed" if Democrat Luther, a state senator, had not blocked a bill sponsored by Republican Jude, who was also a state senator. "Sending (Luther) to Congress would be a crime," it concluded.

The ad was false. Even if Jude's proposed legislation had been enacted it could not possibly have prevented the crime it described. Reason: Jude's bill would have applied only to persons imprisoned for offenses committed on or after August 1, 1987, and the convict mentioned in the ad had been sentenced in 1983.

Jude lost the election, but the ad may have had an effect. His losing margin was only 549 votes out of more than 200,000 cast.

It was Jude's misfortune, however, to live in one of the very few states that outlaws false political advertising. A special prosecutor presented the case to a grand jury, which indicted Jude and his campaign manager. A conviction could have led to a year in jail and a $3,000 fine.

Problems With Enforcement

The trial judge later threw the case out, however, and the Minnesota Court of Appeals refused to reinstate the indictment against Jude. In its opinion, the appeals court said that the Minnesota law was too broad, allowing someone to be charged for having only "reason to believe" that an ad they helped prepare was false. The court said that US Supreme Court rulings required a higher standard: evidence of "actual malice." To convict, prosecutors would have to prove Jude either knew the ad was false, or acted with "reckless disregard" for whether it was true or not. That would have been a tough job; Jude had testified to the grand jury that he was under the false impression that the ad was true, that the rapist named in the ad had been convicted later of a second offense that would have made him subject to the legislation he had proposed. So Jude went free and, in fact, ran against Luther a second time in 1996. This time Luther won with nearly 56% of the vote.

This case exposes two problems with relying on truth-in-advertising laws to protect voters from campaign falsehoods. First, prosecutors can't move quickly enough to cure the damage caused by a last-minute, false attack. Jude wasn't indicted until more than a year after the election that he almost won. And second, under the "actual malice" standard a candidate could lie profusely in ads and still get away with it by claiming he or she thought the ads were true, so long as no convincing evidence surfaced to the contrary.

Washington State: The Case of the Killer Ophthalmologists

Washington state also ran into problems trying to enforce its own truth-in-political-advertising law after a 1991 ballot referendum fight. At issue was a proposed "death with dignity" law. A group opposed to it, the "119 Vote No! Committee," issued a leaflet saying that if the proposal passed "It would let doctors end patients' lives without benefit of safeguards . . . your eye doctor could kill you."

The ballot proposition failed, and the state's Public Disclosure Commission brought an action charging the 119 Committee with violating the state's law against false political advertising. The commission said the proposal did contain standards and it was false to say it would open the door to killer ophthalmologists. But the trial court dismissed the charges in this case, too, and the Washington State Supreme Court later struck down the law under which the committee had been charged.

The Supreme Court's majority opinion questioned whether state government officials had any right to substitute their judgment for that of the voters in matters of political speech. Quoting earlier court opinions, it said:

Washington State Supreme Court: Instead of relying on the State to silence false political speech, the First Amendment requires our dependence on even more speech to bring forth truth. . . . The First Amendment exists precisely to protect against laws such as (the Washington state truth-in-advertising law) which suppress ideas and inhibit free discussion of governmental affairs.

The Washington court wasn't unanimous. A judge who dissented complained that the majority had become "the first court in the history of the Republic to declare First Amendment protection for calculated lies," and said his fellow judges were "shockingly oblivious to the increasing nastiness of modern political campaigns."

At least one other state is currently enforcing its own law against bogus campaign ads. But voters shouldn't take much comfort from that, as the following case study shows.

Ohio: The Case of the Lying Treasurer

Ohio's law has been tested in the courts and survived, and the Ohio Elections Commission looks into 30 to 40 complaints each year, according to its executive director Philip C. Richter.


Taft's False Ad: 1998

Announcer: The men and women of law enforcement -- they want a governor who is tough on crime. Ohio's police have endorsed Bob Taft for Governor -- and rejected Lee Fisher.

Our law officers back Bob Taft to expand Ohio's drug courts and hold violent juveniles more accountable.

And Lee Fisher? As Attorney General, Fisher cut crime-fighting employees by 15%. While increasing his PR budget to $1 million

Bob Taft for Governor. That's how it gets done.

And the seven-member, bipartisan Elections Commission takes its job seriously, as demonstrated in a 1998 case involving a false TV commercial run by the Republican candidate for governor, Bob Taft, against his Democratic opponent, Lee Fisher.

The ad appeared September 18. Fisher complained to the commission, which held hearings and decided the matter less than a month after the ad first aired -- astonishing speed to anyone familiar with the usual pace of election-law enforcement. Richter told FactCheck.org that the commission wanted to decide the matter before voters went to the polls, and it met that deadline with more than two weeks to spare.

On Oct. 16 the commission announced its decision. By what it called "clear and convincing evidence" it ruled that the Taft ad violated Ohio's law against false statements. The ad claimed Fisher, who had been the state's attorney general, "cut crime-fighting employees by 15%," when in fact the number of credentialed investigators actually increased from 214 to 231 during his four-year tenure. Also, the Taft ad claimed "Ohio's police have endorsed Bob Taft . . . and rejected Lee Fisher." Actually, the state's Fraternal Order of Police had been split over its endorsement of Taft, and didn't represent all of "Ohio's police" in any event.

But Taft paid no real penalty for the false ad, except for some unfavorable publicity. The Elections Commission issued only a letter of reprimand -- to Taft's campaign treasurer and his campaign organization. The commission has no power to levy fines. In rare cases it forwards complaints to a prosecutor for possible criminal proceedings, but didn't do that in the Taft case. Taft went on to win the election easily. He's still governor.

Contrast this nearly toothless Ohio law with what the Federal Trade Commission was able to extract from Miss Cleo, who agreed to pay a $5 million penalty to the government and also to give up claims of more than $500 million (yes, half a billion dollars) against her former "clients."

"Convicted of Lying?"

And as if to underscore the futility of using government to regulate truth in politics, The AP quoted Fisher's campaign manager Alan Melamed as saying after the Elections Commission decision was announced: "Bob Taft has found his place in history. . . . He's the first candidate for governor to be convicted of lying." That itself was a false statement. The commission specifically rejected Fisher's complaints against Taft personally, and in any case has no power to "convict," a word that implies criminal violations.

And so it goes. All this should tell voters that -- legally -- it's pretty much up to them to sort out who's lying and who's not in a political campaign. Nobody said Democracy was supposed to be easy.

It is of course the job of news organizations to assist; that's why the First Amendment guarantees a free press as well as free speech. We at FactCheck.org try hard to help. But on election day, it's up to you.

Sources:

Kathleen Hall Jamieson and Karlyn Kohrs Campbell, The Interplay of Influence: News, Advertising, Politics, and the Mass Media, Fifth Edition, Wadsworth/Thomas Learning (Belmont, CA) 2001: 304-307.

"FCC Won't Block Racist Ad in South," The New York Times 4 Aug 1972: 37.

U.S. Supreme Court, Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).

State of Minnesota Court of Appeals, "State of Minnesota v. Thaddeus Victor Jude," C5-96-509 Opinion filed 15 Oct 1996.

State of Minnesota in Court of Appeals

C5-96-509

State of Minnesota,

Appellant,

vs.


Thaddeus Victor Jude,

Respondent.


Filed October 15, 1996

Affirmed

Judge Schumacher,
Hennepin County District Court
File No. 95104313

Hubert H. Humphrey III, Attorney General, Lee E. Sheehy, Chief Deputy
Attorney General, Peter M. Ackerberg, Robert A. Stanich, Assistant
Attorneys General, 102 State Capitol, St. Paul, MN 55155 (for Appellant)

Charles R. Shreffler, Jack E. Pierce, Shreffler Law Firm, P.A., 100 South
Fifth Street, Suite 2250, Minneapolis, MN 55402-1221 (for Respondent)

Roger J. Magnuson, Dorsey & Whitney L.L.P., 2200 Pillsbury Tower South, 220
South Sixth Street, Minneapolis, MN 55402-1498 (for Respondent)

Harlan M. Goulett, 33 South Sixth Street, Suite 3540, Minneapolis, MN 55402
(for Respondent)

Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue
South, Minneapolis, MN 55408 (for Amicus Curiae Minnesota Civil Liberties Union)

Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Foley, Judge.(*)

[Footnote] (*)Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.

Syllabus

1. The Minnesota Fair Campaign Practices Act's prohibition of false campaign advertising is a permissible state regulation of campaign fraud that is not preempted by the Federal Election Campaign Act, which regulates federal campaign contributions and expenditures.

2. The prohibition in Minn. Stat. § 211B.06 (1994) of false campaign statements made with ``reason to believe'' they are false is unconstitutionally overbroad because it extends to statements protected by
the N.Y. Times "actual malice'' standard.

3. The trial court did not clearly err in dismissing the indictment for false campaign advertising based on the record showing the grand jury may have applied an unconstitutionally overbroad standard.

Opinion

SCHUMACHER,
Judge (Hon. Robert H. Lynn, District Court Trial Judge)

This appeal is from a pretrial order dismissing an indictment charging respondent Thaddeus Victor Jude with the gross misdemeanor offense of disseminating false political campaign material in violation of Minn. Stat. § 211B.06 (1994). We affirm.


Facts


Jude ran for the Sixth District Congressional seat in 1994 against William Luther. After the Jude campaign had issued several attacks on Luther's record on crime while he was a state senator, the campaign broadcast a TV ad on the last weekend of the campaign in which it accused Luther, while in the Minnesota Senate, of blocking a Jude-sponsored bill that, Jude claimed, would have prevented a December 1990 crime spree by a convicted sex offender, Daniel Patten.

The TV ad stated as follows:

In 1990, a Minnesota woman and her two daughters

were abducted and repeatedly raped over a two-day

ordeal. Despite two prior convictions, the

perpetrator, Daniel Patten, was out of prison on a

weekend furlough. Patten may never have been

released and this crime never committed had

legislation authored by Tad Jude been enacted. But

Jude's bill was stopped by Bill Luther and his

liberal friends in the Minnesota Senate. Bill

Luther's willingness to set violent criminals free

is putting every woman in Minnesota in danger.

Sending him to Congress would be a crime.

Jude had introduced a bill in the 1987 legislative session that would have delayed certain violent offenders' eligibility for supervised release. It would have become effective August 1, 1987, and applied to offenses committed on or after that date.

Patten had been sentenced in 1983 to a 95-month prison term for criminal sexual conduct. After a revocation of supervised release, he was only two weeks short of the expiration of his sentence in December 1990 when he committed the crimes referred to in the ad while released on a weekend
furlough.

The state presented to the grand jury charges of dissemination of false campaign material against Jude and against his campaign manager, Steven Knuth. The grand jury heard testimony about the history of Jude's bill in the 1987 legislative session. Jude testified, conceding that his bill would not have applied to Patten's case. He testified, however, that he had been assured by Knuth that the bill would have applied to Patten. Jude testified that he was under the impression that Patten had been convicted of another
offense in 1988, and therefore would have been covered by the bill.

The grand jury returned an indictment charging Jude with dissemination of false campaign material.
See Minn. Stat. § 211B.06, subd. 1.

Jude moved to dismiss the indictment, however, and the trial court granted the motion, concluding that the statute was unconstitutionally overbroad and was preempted by federal law. The state filed this appeal.

ISSUES

1. Is the Minnesota Fair Campaign Practices Act preempted by federal law?

2. Is Minn. Stat. § 211B.06, subd. 1 unconstitutionally overbroad?

3. Did the trial court clearly err in dismissing the grand jury indictment?

Analysis

1. Federal Preemption

The trial court concluded that the Minnesota Fair Campaign Practices Act, Minn. Stat. §§ 211B.01-.21 (1994), under which Jude was charged, is preempted by the Federal Election Campaign Act (FECA), and
regulates federal elections in violation of the Elections Clause, and the Supremacy Clause. U.S. Const. art. I, § 4, cl. 1, art. VI, cl. 2.

FECA regulates campaign contributions to candidates for federal office and expenditures made by those candidates. See 2 U.S.C. §§ 431-455 (1994). The Act provides:

The provisions of this Act, and of rules prescribed

under this Act, supersede and preempt any provision

of State law with respect to election to Federal

office.2 U.S.C. § 453 (1994).

There is a strong presumption against preemption. Weber v. Heaney, 995 F.2d 872, 875 (8th Cir. 1993). The explicit preemption in FECA has been narrowly construed in determining what area of state law has been preempted.
Id.; See alsoReeder v. Kansas City Bd. of Police Comm'rs, 733 F.2d 543, 545 (8th Cir. 1984) (FECA preemption statute is not so clear as to preclude consideration of legislative history as to scope of preemption).

The statute under which Jude was charged does not regulate the expenditures of, or campaign contributions to, candidates for federal office, or any other office. See Minn. Stat. § 211B.06. It merely prohibits certain nonfinancial campaign practices by all candidates in Minnesota, specifically the use of false campaign materials or advertising. A separate provision in the Fair Campaign Practices Act does prohibit corporate political contributions. Minn. Stat. § 211B.15. But most of this state's campaign financing provisions are found in chapter 211A.

The United States Supreme Court has recognized the state interest in establishing

a substantial regulation of elections if they are to

be fair and honest and if some sort of order, rather

than chaos, is to accompany the democratic

processes.

Storer v. Brown,
415 U.S. 724, 730, 94 S. Ct. 1274, 1279 (1974).

FECA provides only a very limited regulatory scheme for federal elections.

As the Eighth Circuit indicated in Weber, the FECA preemption provision should not be read so broadly as to preempt state laws in areas such as false registration or voting fraud. 995 F.2d at 876;
See also Friends of Phil Gramm v. Americans for Phil Gramm, 587 F. Supp. 769, 776 (E.D. Va. 1984) (Congress in enacting FECA did not intend to prevent states from regulating fraud in political advertising).

Jude argues that the regulation of false campaign advertising does not relate to the ``time, place and manner'' of a federal election, as permitted by the Elections Clause, and is therefore an unconstitutional
assertion of state power, in violation of the Supremacy Clause.
See U.S. Const. art. I, § 4, cl. 1 (states shall prescribe ``Times, Places and Manner'' of holding congressional elections). We disagree. The United States Supreme Court has recently indicated its approval of state laws that regulate election procedures without imposing substantive qualifications on candidates for federal office. U.S. Term Limits, Inc. v. Thornton, 115 S. Ct. 1842, 1869-70 (1995). A state may adopt, consistent with the Elections Clause, ``'generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.'''
Id. at 1870 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 n.9, 103 S. Ct. 1564, 1570 n.9 (1983) ).

Minn. Stat. 0B.06 is generally applicable to all candidates for election in Minnesota. It prohibits false campaign advertisements, and other false statements in the course of a campaign, and is, therefore,
directly related to the fairness and honesty of the electoral process. The statute is not an unconstitutional state regulation of a federal election.

2. Overbreadth

A statute is unconstitutionally overbroad if it extends to constitutionally-protected speech and other expressive conduct, and if the overbreadth is both real and substantial.
New York v. Ferber, 458 U.S. 747, 770, 102 S. Ct. 3348, 3361-62 (1982). The statute will be
invalidated if by its terms it leaves no room for a narrowing construction.

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 575, 107 S. Ct. 2568, 2572 (1987). Whenever possible, however, this court should narrowly construe a statute to save it from constitutional challenge. In re Welfare of R.A.V., 464 N.W.2d 507, 509 (Minn. 1991), rev'd on other grounds,
505 U.S. 377, 112 S. Ct. 2538 (1992).

Minn. Stat. c+B.06, subd. 1 makes it a crime to

intentionally participate[] in the preparation,

dissemination, or broadcast of paid political

advertising or campaign material with respect to the

personal or political character or acts of a

candidate, whether or not defamatory, * * * that the

person knows or has reason to believe is

false and that is designed or tends to elect,

injure, or defeat a candidate * * * *.

(Emphasis added.) The trial court concluded that the extension of criminal liability to those who have only a ``reason to believe'' the campaign material is false makes the statute unconstitutionally overbroad. We agree.

A statement made concerning a public official is not defamatory, unless it is made with

``actual malice'' - that is, with knowledge that it

was false or with reckless disregard of whether it

was false or not.

New York Times Co. v. Sullivan,
376 U.S. 254, 279-80, 84 S. Ct. 710,

726 (1964). A criminal sanction may not be imposed for political speech that does not meet the
N.Y. Times ``actual malice'' standard.

Garrison v. Louisiana,
379 U.S. 64, 76-78, 85 S. Ct. 209, 216-17

(1964). The state, however, argues that any overbreadth created by the ``reason to believe'' language is not real and substantial.

Jude argues that the ``reason to believe'' language in section 211B.06 creates an ordinary negligence standard. But our supreme court has construed ``reason to believe'' as used in the mandatory child abuse
reporting law, to require a gross negligence standard. State v. Grover, 437 N.W.2d 60, 63 (Minn. 1989). Thus, Minn. Stat. § 211B.06 would be interpreted, even in the absence of constitutional challenge, as
requiring gross negligence. Even gross negligence, however, is defined objectively, as a gross deviation from the standard of ordinary care, while ``reckless disregard'' involves a subjective element of actual conscious disregard of the risk created by the conduct.
See State v. Frost, 342 N.W.2d 317, 319-20 (Minn. 1983).

This difference is "real and substantial'' when the challenged statute regulates ``core political speech'' as does Minn. Stat. § 211B.06. See McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1519 (1995) (law burdening "core political speech'' must be examined with exacting scrutiny).

The state argues that the ``reason to believe'' language in section 211B.06 should be narrowly construed, to avoid a finding of unconstitutionality, as covering only statements made with ``reckless disregard'' of their truth or falsity, as required by N.Y. Times.

The N.Y. Times "actual malice'' standard is plainly the pattern to which the statute must be trimmed. Moreover, Jude does not show that Minn. Stat. § 211B.06 is so sweeping that it cannot effectively be narrowed by limiting the phrase ``reason to believe'' to situations in which there is a reckless disregard
of the truth or falsity of the statement. But, because of the way in which the offense was presented to the grand jury, it is not possible to apply a narrowing construction in this case.

3. Dismissal of Indictment

Jude argues that this court cannot employ a saving construction of Minn. Stat. § 211B.06 because the grand jury itself was given the unconstitutionally overbroad ``reason to believe'' language. The trial
court concluded that the grand jury had been improperly instructed, and that this error could not be said to be harmless. We agree, and find that the trial court's conclusion is not clearly erroneous.
See generally State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977) (state in pretrial appeal must show clearly and inequivocally that trial court erred).

The prosecutor deleted the ``reason to believe'' language in instructing the grand jury on the elements of the offense, apparently trying to narrow the statute's overbreadth. But the prosecutor displayed by overhead projector the full statute, including the ``reason to believe'' language, both before and after the evidence was presented. Moreover, the forms for the overhead projection of the statute were left in the room where the grand jury deliberated. Thus in this case, although there was some attempt to do so, no clear limiting construction was provided to the grand jury.
Cf. State v. Hipp, 298 Minn. 81, 90-91, 213 N.W.2d 610, 616-17 (1973) (affirming unlawful assembly convictions where trial court applied limiting construction in instructing jury).

The supreme court has reversed a disorderly conduct conviction that it determined could not stand under a saving construction the court adopted to save the statute from an overbreadth challenge. In re Welfare of
S.L.J., 263 N.W.2d 412, 419-20 (Minn. 1978). The court noted that the Constitution required ``fighting words'' before a person could be convicted for mere speech and reversed because the state had failed to prove that the words uttered were ``fighting words.'' Id. at 420.

We do not hold that a properly-instructed grand jury could not find probable cause to believe that Jude's conduct met the N.Y. Times ``actual malice'' standard. We cannot find on this record, however, that the grand jury applied the constitutionally-required ``actual malice'' standard, or some narrower construction of Minn. Stat. § 211B.06, subd.

1. Accordingly, the trial court did not clearly err in dismissing the indictment.

Decision

Minn. Stat. § 211B.06 is not preempted by federal law. The statute, however, is unconstitutionally overbroad. The trial court did not clearly err in dismissing the indictment because the record fails to show that the grand jury applied a constitutionally permissible standard.

Affirmed.


Randy Furst, "Jude indicted by grand jury for anti-Luther campaign ad; Prosecutors say he knew ad was false," Star Tribune (Minneapolis), 29 Nov 1995: A1.

Randy Furst and Jim Parsons, "Charges against Jude are dismissed; Political ads law unconstitutional," Star Tribune (Minneapolis), 2 March 1996: 1A.

Supreme Court of Washington State, "State of Washington v. 199 No! Committee," 957 P.2d 691, 11 June 1998.

Paul Souhrada, "Elections commission says Taft ad was misleading," The Associated Press , 16 Oct. 1998.

Mary Beth Lane and Benjamin Marrison, "Taft Commercial Ruled Untruthful;
Commission Says Data On Fisher Was Misused," Cleveland Plain Dealer, 17 Oct. 1998: 4b.

Randy Ludlow, "Taft

 
© 2003 The E-Accountability Foundation