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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
Aaron Carr
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 camp scolded for TV ad," Cincinnati Post , 17 Oct 1998.

U.S. Supreme Court
MONITOR PATRIOT CO. v. ROY, 401 U.S. 265 (1971)
401 U.S. 265
MONITOR PATRIOT CO. ET AL. v. ROY, EXECUTRIX.
CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE.
No. 62.
Argued December 17, 1970
Decided February 24, 1971



Just before the 1960 New Hampshire Democratic primary election, petitioner newspaper published a column characterizing senatorial candidate Roy as a "former small-time bootlegger." Roy, who was not elected, sued the newspaper and the distributor of the column for libel. The judge told the jury that Roy, as a candidate, was a "public official," and that a rule requiring a showing that the article was false and had been published "with knowledge of its falsity or with reckless disregard of whether it was false or true," applied as long as the libel concerned "official" as opposed to "private" conduct. The jury was instructed that if it found the libel to be in the "public sector," it had to bring in a verdict for the distributor, as there was no evidence that it had engaged in knowing or reckless falsehood, but that it had to decide on the "preponderance of the evidence" whether the newspaper was liable. If the publication was in the "private sector," there were two defenses: (1) "justification," if the article was true and published on a "lawful occasion," and (2) "conditional privilege," if the article was false but if the publication was "on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published." The jury returned a verdict against both the newspaper and the distributor of the column. The State Supreme Court affirmed, holding that the jury properly considered whether the alleged libel was "relevant" to Roy's fitness for office. Held:


1. Publications concerning candidates for public office must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. Pp. 270-272.

2. As a matter of constitutional law, a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for purposes of applying the "knowing falsehood or reckless disregard" rule of New York Times Co. v. Sullivan, 376 U.S. 254 . Pp. 272-277. [401 U.S. 265, 266]

3. The jury here was erroneously permitted to determine that the criminal charge was not "relevant" and that the New York Times standard was inapplicable. P. 277.

109 N. H. 441, 254 A. 2d 832, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 301. BLACK, J., filed an opinion concurring in the judgment and dissenting in part, in which DOUGLAS, J., joined, post, p. 277.

Edward Bennett Williams argued the cause for petitioners. With him on the briefs were Harold Ungar and Joseph A. Millimet.

Stanley M. Brown argued the cause and filed a brief for respondent.

MR. JUSTICE STEWART delivered the opinion of the Court.

On September 10, 1960, three days before the New Hampshire Democratic Party's primary election of candidates for the United States Senate, the Concord Monitor, a daily newspaper in Concord, New Hampshire, published a syndicated "D.C. Merry-Go-Round" column discussing the forthcoming election. The column spoke of political maneuvering in the primary campaign, referred to the criminal records of several of the candidates, and characterized Alphonse Roy, one of the candidates, as a "former small-time bootlegger." 1 Roy was not [401 U.S. 265, 267] elected in the primary, and he subsequently sued the Monitor Patriot Co. and the North American Newspaper Alliance (NANA), the distributor of the column, for libel. [401 U.S. 265, 268]

The newspaper and NANA offered "truth" as their primary defense at trial, and evidence was presented on the issue of whether or not Roy had in fact been a bootlegger during the prohibition era. The defendants also alleged that they had published in good faith, without malice, with a reasonable belief in the probable truth of the charge, and on a lawful occasion. At the close of the evidence, the trial judge instructed the jury at great length on the law to be applied to the case. Three possible defenses emerged from these jury instructions.

First, the trial judge told the jury that Roy was a "public official" by virtue of his candidacy in the primary. As a consequence, a special rule, requiring a showing that the article was false and had been published with "knowledge of its falsity or with a reckless disregard of whether it was false or true," would apply so long as the libel concerned "official conduct" as opposed to "private conduct." This private-public distinction was elaborated as follows: "Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with [401 U.S. 265, 269] official conduct of public officials?" The trial judge went on:


"As a candidate for the United States Senate, the plaintiff was within the public official concept, and a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office. That is, anything which might touch on Alphonse Roy's fitness for the office of United States Senator would come within the concept of official conduct. If it would not touch upon or be relevant to his fitness for the office for which he was a candidate but was rather a bringing forward of the plaintiff's long forgotten misconduct in which the public had no interest, then it would be a private matter in the private sector."

The judge then instructed the jury that if it found the libel to be in the "public sector" it must bring in a verdict for NANA, since there had been no evidence that NANA had engaged in knowing or reckless falsehood, but that it still had to decide on the "preponderance of the evidence" whether the newspaper was liable.
Supposing the publication to be in the "private sector," the trial judge instructed the jury that there were two possible defenses available to the newspaper and NANA. The first was "justification," which would prevail if the jury found that the article was both true and published on a "lawful occasion." 2 The second defense was "conditional [401 U.S. 265, 270] privilege," which could prevail even if the jury found the article to be false, but only if it also found that its publication was "on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published."

The jury returned a verdict of $20,000, of which $10,000 was against the newspaper and $10,000 against NANA. On appeal, the New Hampshire Supreme Court affirmed the judgment, holding that the trial judge properly sent to the jury the question of whether or not the particular libel alleged was "relevant" to Roy's fitness for office. 109 N. H. 441, 254 A. 2d 832. We granted certiorari in order to consider the constitutional issues presented by the case. 397 U.S. 904 .


I
In New York Times Co. v. Sullivan, 376 U.S. 254, 279 -280, we held that the First and Fourteenth Amendments require "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." The rule of New York Times was based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society's interest in the protection of individual reputation. The approach of New York Times was to identify a class of person - [401 U.S. 265, 271] there public officials - and a type of activity - there official conduct - and to require as to defamations respecting them a particularly high standard of liability - knowing falsehood or reckless disregard of the truth. Later cases have made it clear that the applicability of this basic approach is not limited to those in public office or to the performance of official acts, or, for that matter, to conventional civil libel suits. Garrison v. Louisiana, 379 U.S. 64 ; Curtis Publishing Co. v. Butts, 388 U.S. 130 ; Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6 .

This case went to the jury in December 1966, after our decisions in New York Times and Garrison, but before Curtis and Greenbelt. The trial judge instructed the jury that Roy, as a candidate for elective public office, was a "public official," and that characterization has not been challenged here. Given the later cases, it might be preferable to categorize a candidate as a "public figure," if for no other reason than to avoid straining the common meaning of words. But the question is of no importance so far as the standard of liability in this case is concerned, for it is abundantly clear that, whichever term is applied, publications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office. That New York Times itself was intended to apply to candidates, in spite of the use of the more restricted "public official" terminology, is readily apparent from that opinion's text and citations to case law. 3 And if it be conceded that the First [401 U.S. 265, 272] Amendment was "fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth v. United States, 354 U.S. 476, 484 , then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.


II
The jury in the case returned verdicts against both the newspaper and NANA. It is clear, therefore, that it found the bootlegger charge to be in the "private sector," since it had been instructed that unless it so found it could not impose liability on NANA. It is possible that having made this determination, it then concluded that the charge was true but "unjustified" - that is, that it had been published without a "lawful occasion." In any event, under the trial judge's instructions it was also free to return a money verdict if it found that the publication was false and had not been made "in good faith," for a "justifiable purpose," and with a "belief founded on reasonable grounds of the truth of the matter published." Since this standard is far less stringent than that of knowing falsehood or reckless disregard of the truth, the judgment must be reversed unless it can be shown that the New York Times rule is not applicable because of the nature of the libel in question. Cf. Ocala Star-Banner Co. v. Damron, post, p. 295. [401 U.S. 265, 273]

The respondent argues that under New York Times a plaintiff has a special burden of proof only as to libels "relating to official conduct," that for a candidate "official conduct" means "conduct relevant to fitness for office," and that the public-private issue is one of fact for the jury. In our view, however, the syllogistic manipulation of distinctions between "private sectors" and "public sectors," or matters of fact and matters of law, is of little utility in resolving questions of First Amendment protection.

In Garrison v. Louisiana, supra, we reversed a conviction for criminal libel of a man who had charged that a group of state court judges were inefficient, took excessive vacations, opposed official investigations of vice, and were possibly subject to "racketeer influences." The Louisiana Supreme Court had held that these statements were not "criticisms . . . of the manner in which any one of the eight judges conducted his court when in session," but rather were accusations of crime and "personal attacks upon the integrity and honesty" of the judges. This Court rejected the proposed distinction:


"Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation. The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these [401 U.S. 265, 274] characteristics may also affect the official's private character." 379 U.S., at 76 -77.

Cf. Ocala Star-Banner Co. v. Damron, supra.
The considerations that led us thus to reformulate the "official conduct" rule of New York Times in terms of "anything which might touch on an official's fitness for office" apply with special force to the case of the candidate. Indeed, whatever vitality the "official conduct" concept may retain with regard to occupants of public office, cf. Garrison, supra, at 72 n. 8, it is clearly of little applicability in the context of an election campaign. The principal activity of a candidate in our political system, his "office," so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of "purely private" concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry "Foul!" when an opponent or an industrious reporter attempts to demonstrate the contrary. 4 Any test adequate to safeguard First Amendment guarantees in this area must go far beyond the customary meaning of the phrase "official conduct." [401 U.S. 265, 275]

Given the realities of our political life, it is by no means easy to see what statements about a candidate might be altogether without relevance to his fitness for the office he seeks. The clash of reputations is the staple of election campaigns, and damage to reputation is, of course, the essence of libel. But whether there remains some exiguous area of defamation against which a candidate may have full recourse is a question we need not decide in this case. The trial judge presented the issue to the jury in the form of the question: "Is it more probable than otherwise that the publication that the plaintiff was a former small-time bootlegger was a public affair on a par with official conduct of public officials?" This instruction, and the others like it, left the jury far more leeway to act as censors than is consistent with the protection of the First and Fourteenth Amendments in the setting of a political campaign.

The application of the traditional concepts of tort law to the conduct of a political campaign is bound to raise dangers for freedom of speech and of the press. The reasonable-man standard of liability, for example, serves admirably the essential function of imposing an objective and socially acceptable limit on the freedom of an individual to act with relation to others. But under our system of government, we have chosen to afford protection even to "opinions that we loathe and believe to be fraught with death," Abrams v. United States, 250 U.S. 616, 630 (Holmes, J., dissenting). A community that imposed legal liability on all statements in a political campaign deemed "unreasonable" by a jury would have abandoned the First Amendment as we know it. Likewise, a "preponderance of the evidence" burden of proof plays an indispensable role in the control of private negligence. But we have recognized that in the realm of political belief "the tenets of one man may seem the [401 U.S. 265, 276] rankest error to his neighbor," and that the advocates whom we protect may resort to "exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement," Cantwell v. Connecticut, 310 U.S. 296, 310 . It is simply inconsistent with this commitment to permit the imposition of liability for political speech that "more probably than otherwise" in the opinion of the jury "would not touch upon or be relevant" to a candidate's fitness for office. Cf. Speiser v. Randall, 357 U.S. 513, 525 -526; Smith v. California, 361 U.S. 147 .

It is perhaps unavoidable that in the area of tension between the Constitution and the various state laws of defamation there will be some uncertainty as to what publications are and what are not protected. The mental element of "knowing or reckless disregard" required under the New York Times test, for example, is not always easy of ascertainment. "Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law." St. Amant v. Thompson, 390 U.S. 727, 730 -731. But there is a major, and in this case decisive, difference between liability based on a standard of care, and liability based on a judgment of the "relevance" of a past incident of criminal conduct to an official's or a candidate's fitness for office. A standard of care "can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood." Curtis Publishing Co. v. Butts, supra, at 153 (opinion of HARLAN, J.). A standard of "relevance," on the other hand, especially such a standard applied by a jury under the preponderance-of-the-evidence [401 U.S. 265, 277] test, is unlikely to be neutral with respect to the content of speech and holds a real danger of becoming an instrument for the suppression of those "vehement, caustic, and sometimes unpleasantly sharp attacks," New York Times, supra, at 270, which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail.

We therefore hold as a matter of constitutional law that a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office for purposes of application of the "knowing falsehood or reckless disregard" rule of New York Times Co. v. Sullivan. Since the jury in this case was permitted to make its own unguided determination that the charge of prior criminal activity was not "relevant," and that the New York Times standard was thus inapplicable, the judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.


It is so ordered.

[For concurring opinion of MR. JUSTICE WHITE, see post, p. 301.]


Footnotes
[ Footnote 1 ] The text of the portion of the column concerning the New Hampshire primary was as follows: "Political Snafu "Rock-ribbed Republican New Hampshire, whose ex-Gov. Sherman Adams was top kick in the White House for years and whose Sen. Styles Bridges is still top kick on the GOP side of the Senate, [401 U.S. 265, 267] is so fouled up in a primary snafu that the state may go Democratic this year. The primary verdict is due next Tuesday. "Even that able Senate stalwart, Styles Bridges, is restirring himself. He has nothing to worry about from his Republican opponent, but the Democrats have put up a dynamic Dartmouth professor, Herbert Hill, against him. The professor came within 11,000 votes of defeating Sherman Adams, lately of vicuna-coat fame, in the 1948 gubernatorial race. "Curiously, the Democratic primary has been cluttered with a motley assortment of candidates who have challenged Hill for the privilege of running against Bridges. That sly, old Republican disclaims any connection with it, but he appears pleased over the muddying of Democratic waters. "One of Hill's primary opponents Frank L. Sullivan, was released from the Grasmere County Work Farm just in time to file for the Senate. With a police record of no fewer than 19 convictions for drunkenness since 1945, he was serving his latest 90-day sentence. "Curious Call "To make sure he would get out in time to run for the Senate, a former small-time bootlegger and later U.S. Marshal, Alphonse Roy, telephoned the Grasmere warden about Sullivan. "Ralph LaVallee in charge of Grasmere, admitted to this column that he had received a telephone inquiry from Roy as to whether Sullivan would be released in time to file. But the warden denied another report that Roy had announced he was calling `on behalf of my friend Styles.' "`I don't want to get implicated in anything like that,' said LaVallee, `Roy didn't mention Senator Bridges.' "Sullivan happily got out of the workhouse in time to run for the most distinguished legislative body in the world. And who should turn up on the ballot but the same Alphonse Roy who was so eager to get him out of the clink. "Because of the peculiar population division of New Hampshire, the Irish Catholics may be inclined to vote for a Frank Sullivan while the French Canadians could be attracted by a name like [401 U.S. 265, 268] Alphonse Roy. The effect would be to cut down Herb Hill's chances. "Convicts For Senator "Two other curious candidates, who tried to run in the Democratic primary against Hill, were Harold P. McCarthy who has a record of nine convictions for drunkenness, assault, and brawling, and Clement P. Robinson Jr., who has a record of six brushes with the law for drunkenness and traffic violations. Robinson also received a 30-day suspended sentence for stealing two power lawnmowers and a conviction for the nonsupport of his wife and three children. "But at least Professor Hill managed to persuade the New Hampshire Ballot Law Commission into knocking McCarthy and Robinson off the ballot."

[ Footnote 2 ] The trial judge gave the jury the following definition of a "lawful occasion": "If the end to be attained by the publication is justifiable, that is, to give useful information to those who have a right and ought to know in order that they may act upon such information, the occasion is lawful. Where, however, there is merely the color of a lawful occasion and the defendant, instead of acting in good faith, [401 U.S. 265, 270] assumes to act for some justifiable end merely as a pretense to publish and circulate defamatory matter, or for other unlawful purpose, he is liable in the same manner as if such pretense had not been resorted to." The trial judge placed the burden of showing a "lawful occasion" on the defendants.


[ Footnote 3 ] One of the citations was to a Kansas decision which admirably stated the case for the inclusion of candidates within the rule: "[I]t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counter-balance [401 U.S. 265, 272] the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged." Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908).


[ Footnote 4 ] A commentator writing in 1949 described the ambience as follows: "Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like have usually filled the air; and hints of bribery, embezzlement, and other criminal conduct are not infrequent. If actionable defamation is possible in this field, one might suppose that the chief energies of the courts, for some time after every political campaign, would be absorbed by libel and slander suits." Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875.

Separate opinion of MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins. *

I concur in the judgments of the Court in this case and in No. 109 and No. 118, for the reasons set out in my concurring opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964), in my concurring and dissenting opinion in Curtis Publishing Co. v. Butts, 388 U.S. 130, 170 (1967), and in MR. JUSTICE DOUGLAS' concurring opinion in Garrison v. Louisiana, 379 U.S. 64, 80 (1964). [401 U.S. 265, 278] However, I dissent from those portions of the opinions in this case and No. 118 which would permit these libel cases to be tried again under a different set of jury instructions. As I have stated before, "[I]t is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments." Curtis Publishing Co. v. Butts, supra, at 172 (separate opinion of BLACK, J.).


[ Footnote * ] [This opinion applies also to No. 109, Time, Inc. v. Pape, post, p. 279, and No. 118, Ocala Star Banner Co. et al. v. Damron, post, p. 295.] [401 U.S. 265, 279]

 
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