Making intentionally misleading statements could land you in jail if some Democratic senators get their way. A bill proposed by Sen. Charles Schumer, D-N.Y., would impose up to a five-year prison sentence on anyone who deliberately misleads voters as to the time and place of voting, or misleads them on whether a candidate had been endorsed by a particular person, group or political party.
The Senate Judiciary Committee held a hearing Tuesday on the bill, which also would make it a federal crime to pay someone to not vote and a crime to hinder a person who is helping someone to vote.
But are deliberately misleading statements protected by the First Amendment’s freedom of speech?
By coincidence the Supreme Court is likely to announce Thursday its ruling in a challenge to the Stolen Valor Act, a federal law which punishes a person for falsely claiming to have been awarded military medals. As with the Schumer bill, that case raises the question of whether there’s First Amendment protection for knowingly misleading people.
Schumer told the Judiciary Committee hearing Tuesday that “some of these practices are just despicable – sending out on what looks like an official letterhead (a letter stating that) the date of voting is changed to Wednesday, sending (the letter) to Democrats and not to Republicans.”
But Sen. Chuck Grassley, R–Iowa, the senior Republican on the Judiciary Committee, said “this bill represents a frontal attack on First Amendment freedom of speech…. Proponents of this bill seem to not understand the dangers of having the Justice Department inject itself at the behest of politicians into prosecuting other politicians,” he added.
Grassley said an especially dangerous provision in the Schumer bill is one that would allow a person to file a civil suit against the candidate or campaign manager who uses the deceptive tactics prohibited by the measure. If you’re the candidate filing such a suit against your rival candidate, Grassley said, it will “force your opponent to spend money on lawyers, rather than against you. The press will report the claim of dirty tricks on the eve of the election. The victim will be unable to respond effectively to refute the claims.”
Grassley also complained that the bill omits any provisions to punish candidates who lie or shade the truth. “Why doesn’t this bill criminalize intentionally deceptive statements made by candidates themselves such as whether or not they are Native Americans?” Grassley asked, in an apparent reference to Massachusetts Democratic Senate candidate Elizabeth Warren, whose claim to have Cherokee ancestors has become a pivotal issue in her Senate bid.
Jenny Rose Flanagan, the director of voting and elections at the nonprofit group Common Cause, testified to the committee that in Pueblo, Colo., in 2008 voters were falsely told by phone calls on the eve of Election Day about a sudden change in location of voting precincts.
Flanagan said that in the recent recall election in Wisconsin, voters reported having received calls that falsely told them that if they had signed the recall petition against Gov. Scott Walker they need not vote – that simply signing the petition was tantamount to voting to recall Walker.
The Schumer bill’s co-sponsor, Sen. Ben Cardin, D-Md., also testified that students at some universities had received text messages in 2008 telling them that the election had been postponed for a day.
Cardin mentioned that last year a jury found former Maryland Gov. Robert Ehrlich's campaign manager guilty on state fraud charges for approving Election Day 2010 robo-calls targeting voters in Baltimore and Prince George’s County, telling them Democratic Gov. Martin O’Malley had won re-election and that they could “relax.”
One answer to such practices is that no sensible person would be deceived by being told such blatantly false things -- voters do know that Election Day is the first Tuesday after the first Monday in November, and voters also know that signing a petition isn’t the same as voting in an election.
But Cardin spoke from first-hand experience to argue the need for what he called “deterrent” legislation.
Cardin won his seat in 2006 despite a flier that Maryland Republicans distributed on Election Day that claimed that his GOP opponent Michael Steele had been endorsed by three prominent African-American Democrats: former Prince George’s County executive Wayne Curry, former Rep. Kweisi Mfume and Prince George’s County Executive Jack Johnson. In fact, Mfume and Johnson had endorsed Cardin.
“There was a clear intent to confuse African-American voters,” Cardin said Tuesday.
Despite those Republican maneuvers, Cardin won. Steele went on to serve as chairman of the Republican National Committee and is now an MSNBC contributor.
Cardin said, “You’re not going to effectively be able to stop it if somebody wants to do it. But then you can hold that person accountable and that person ends up in jail and you deter other people from doing it.”
He added, “We tried to narrow this; because we know the burden is on us, on any restrictions on the First Amendment, so we’re narrowing it to a very narrow set of communications, it has to be intentionally aimed at disenfranchising voters,” Cardin said.
The Schumer bill does raise the specter of a post-election civil suit in which one candidate gets the strategy memos from the opposing side “I can’t understand why they wouldn’t be discoverable,” Cardin said, referring to the pre-trial discovery process in which parties to a lawsuit obtain certain documents from the other party to the suit.
Cardin added, “In one respect, I agree with Sen. Grassley: We think some of these actions would violate current federal criminal statutes. The attorney general would like to have it clarified; he would like to have stronger tools. That’s why we have the bill here.”