It seems Americans aren’t quite as free as I thought.
In a recent column titled “Free speech for liars,” on whether hucksters should be prosecuted for lying about military honors, I claimed that certain types of false statements are protected under the First Amendment (which is true), including those uttered by candidates during campaigns (maybe true, maybe not).
As the Republican candidate for Colorado secretary of state, Scott Gessler, was quick to remind me, the Supreme Court has never clearly said whether false statements during campaigns are protected. As a practical matter, candidates can say pretty much whatever they like, and a number of legal scholars believe false statements by candidates ought to be protected.
Meanwhile, however, some states — Colorado included — officially outlaw campaign falsehoods. Colorado’s law is more disturbing than most because it goes beyond outlawing lies and also criminalizes false statements uttered “recklessly.” That’s an absurdly broad standard.
No matter how obnoxious an accusation might be, do we really want government prosecutors attempting to enforce political truthfulness? How can we trust them (or juries) to be impartial when they harbor partisan biases, too?
Colorado’s law regarding false or reckless statements was hardly a secret to me, since I lambasted it when lawmakers debated its passage in 2002. Sponsored by leaders of both parties, it amounted to a self-interested attempt to crack down on attack ads.
Yet so far as Gessler knows (and he tends to hear about these things), no one has been charged under the statute. Four years ago the El Paso district attorney nearly filed charges against a Republican activist over an attack ad that contained an error, but thought better of it in the face of a public uproar fueled in part by Gessler.
“Political speech — even erroneous or false statements — should not land someone in jail,” Gessler thundered in a broadside e-mail that referenced the sad fate of an 18th century publisher.
He’s right. As corny as it sounds, the most effective antidote to political lies is the truth, not a criminal statute that could rarely be enforced before Election Day even if prosecutors tried. Candidates under unfair attack can and do punch back. Sometimes the media help to set the record straight, too.
In low-profile contests, sadly, a well-funded smear campaign can stagger an outmanned candidate. But any legal cure for low blows would be worse than the disease.
And remember, the most searing smears are not total inventions; they’re crude distortions. Michael Bennet helped the Anschutz Corp. restructure insolvent theater chains. Yet his primary opponent, Andrew Romanoff, claimed Bennet and Phil Anschutz “pushed companies into bankruptcy and looted a billion dollars.”
Is that a lie? I think so, but Romanoff could have produced credentialed “experts” to argue otherwise.
Is it a lie for 3rd District congressman John Salazar to dub Republican John Tipton a “banker” while linking him to “greedy Wall Street fat cats” and implying he profited from federal bailouts because he served on the board of a bank before the bailouts occurred? Tipton is not a banker, so I’d say the ad’s a lie, but do we really want juries deciding whether it’s legal to call someone a banker who once served on a board?
Campaigns are brutal, as voters notice to their dismay at every election. Better for campaigns to be brutal and free, though, than at the mercy of government truth police.
E-mail Vincent Carroll at vcarroll@denverpost.com.
