This topic is monitored by Moritz Law Professor Edward B. Foley
False Ads, Left and Right?
It’s not just Republicans who engage in deceptive campaign advertising. Democrats do it, too.
Last week, Election Law @ Moritz addressed the anti-Kerry ad sponsored by Swift Boat Veterans for Truth. Now it’s time to consider an anti-Bush ad by the Media Fund that is currently running here in Ohio. This ad, entitled “Ohio Outsourced,” has several Ohioans lamenting the loss of jobs overseas. One of them says, “When President Bush says he’s going to help companies outsource jobs, it’s infuriating.”
According to the nonpartisan group www.FactCheck.org, however, President Bush said no such thing. At most, some Bush Administration officials have said that outsourcing may be good for the U.S. economy, as part of free trade, but that’s not the same as Bush himself saying it. Moreover, as FactCheck.org also observes, saying that outsourcing is okay, or even beneficial, is not the same as saying that you are going to adopt incentives to promote more of it. Putting the “he’s going to help companies” words into Bush’s mouth suggest policy positions significantly beyond what even his economic advisors have said.
Assuming that FactCheck’s account of the ad is correct – and its link to the Media Fund’s own defense of the ad indicates that it is (since the Media Fund offers no Bush quotation of its own, nor any Bush Administration proposals to promote outsourcing) – the question then is whether the Media Fund can be held liable under Ohio law for the falsity in this ad. An Ohio Court of Appeals decision from 2001, The Team Working For You v. Ohio Elections Commission, 754 N.E.2d 273 suggests that the answer is yes, although undoubtedly the Media Fund would claim that the ad is constitutionally protected political debate.
That case involved a campaign ad, published in a local newspaper, that attacked a candidate running for city council of Macedonia. The ad began with the headline: “RESIDENTS, REMEMBER THESE FACTS WHEN YOU VOTE ON NOVEMBER 4.” It then proceeded to make several assertions about the candidate, Peggy Spraggins, three of which the appeals court found to be false.
First, the ad stated that Spraggins “is currently campaigning against industrial growth and overdevelopment in Macedonia.” Focusing on the ad’s use of the word “currently,” the appeals court observed that Spraggins had no such platform for her campaign in 1997. The court recognized that two years earlier, in 1995, when running for mayor, Spraggins had favored slower growth and had opposed tax abatements to encourage new development. The court, however, determined that the term “currently” could not be used truthfully to describe Spraggins’ position two years previously. “‘Currently’ means occupying or existing in the present time, not two years prior,” explained the court.
Moreover, even if her position in 1997 were the same as in 1995, the court objected to the ad’s characterization of that position. “[A] statement against tax abatements does not equate to being against industrial growth.” In other words, even if Spraggins were on record during the current campaign as favoring slower growth and opposing tax abatements to stimulate development, according to the appeals court it would be false to assert that the candidate “opposes industrial growth.”
In terms of what the appeals court found objectionable, the parallels between this ad and the Media Fund’s are striking. Asserting that “President Bush says” he’s going to promote outsourcing, when only his aides have come close to such a statement, is false in the same way as asserting that Spraggins is “currently” against growth, when at most she was against growth in a previous campaign two years earlier. Indeed, the misattribution from one person to another might be thought a worse offense than the misattribution from one year to another.
Similarly, saying that Bush is “going to help companies outsource jobs,” if all that could be attributable to him is a belief that outsourcing is good for the economy, is comparable to saying that Spraggins “opposes industrial growth” when the furthest she has ever gone is to say that she opposes tax abatements to promote growth. Both ads position the candidates further out on the issues than the candidates themselves have been willing to go. While one might argue that in neither case should such characterization of a candidate’s positions should be considered false, subject to liability under the law, the Ohio Court of Appeals has ruled otherwise. If an ad can be held liable for painting a candidate as more opposed to industrial growth than the candidate really is, then presumably so can an ad that paints a candidate as more supportive of outsourcing than the candidate really is. To be sure, while this kind of stretching of the truth might not have been enough in the Spraggins case, without the additional misuse of the word “currently,” the Media Fund likewise pinned the mischaracterized policy views on Bush personally, rather than on his advisors, thereby compounding its mistake.
Under Ohio law, it is not enough that a campaign ad be false. It must be intentionally or recklessly so. But in The Team Working For You, the Ohio appeals court had no trouble finding that the anti-Spraggins ad was recklessly false. The committee that sponsored the ad (Team Working for You) had researched Spraggins record and still used the word “currently” when there was no evidence in the record to support its use – and still mischaracterized Spraggins' previous position as being “against industrial growth” when she was only against tax abatements to promote growth. As the court put it, the committee’s members “displayed a reckless disregard for the truth by using inaccurate words in the advertisement.”
If this committee was reckless in its falsity, then so too presumably was the Media Fund. Like the anti-Spraggins committee, the Media Fund researched the record in preparation of its ad. The Media Fund, indeed, has posted on its web site the facts from the record that it believes justify the assertions contained in its “Ohio Outsourced” ad. The problem, however, is that these facts don’t have President Bush making the same statements that his advisors made, and they don’t have the advisors advocating new incentives to promote outsourcing. The Media Fund appears to have been just as irresponsible in its choice of words for its ad, deviating from its own research, in the same way and to the same degree as the anti-Spraggins committee.
Analysis of the two other falsehoods found by the Ohio Court of Appeals in the anti-Spraggins ad almost seems superfluous at this point. Yet examining them adds to the impression that the Media Fund is at risk under Ohio law.
The second falsity in the ad, according to the court, concerned the assertion that Spraggins in 1987 had “worked with an out-of-town developer to rezone several acres of wooded property . . . from residential to industrial.” The ad further asserted that “Spraggins actively advised and campaigned for the developer despite the protests of residents who lived in the area.” The evidence, however, was that Spraggins then worked as a city clerk and, as part of her duties, was responsible for assisting applicants with zoning procedures. The mayor testified that Spraggins had done nothing for the developer beyond what was required by her city job, and the appeals court concluded that the ad was recklessly false in asserting that Spraggins had “actively campaigned” for the developer when there was no evidence that she had.
The ad’s third falsehood was its assertion that Spraggins in 1994 had “stopped a referendum petition that would have given the residents a vote on . . . [a] proposed increase in our sewer rates.” The truth, however, was that, as a government clerk, Spraggins had requested a legal opinion from the county prosecutor on whether the rate increase was the proper subject of a referendum, and the local prosecutor had concluded that it was not. In the courts’ view, “[h]er request for a legal opinion did not stop the referendum petition, but, rather, the petition drive was stopped by the prosecutor’s opinion that it was not subject to a referendum.”
Although the second falsity seems the one most contradicted by the record – “actively campaigned” when she merely assisted as part of her government job – the third falsity seems more of a stretch than an outright lie. In some sense, Spraggins did doom the petition when she requested the legal opinion. While the ad is misleading in suggesting that she wanted to stop the petition, when in fact she again was just doing her job in requesting the opinion, the assertion that she “stopped the petition” is not literally false. If liability may be imposed based on this assertion, as the court of appeals ruled, that’s all the more reason for believing that the Media Fund is potentially liable for what was said in the “Ohio Outsourced” ad. Saying that Bush is going to “help” companies outsource jobs seems no less a deviation from the truth than saying that Spraggins “stopped” the referendum petition.
The Ohio Court of Appeals rejected the argument that the anti-Spraggins ad was merely incomplete in its truthfulness and, therefore, not actionable under Ohio law. On the contrary, ruled the appeals court, the anti-Spraggins ad crossed the line by containing statements that were not true. The test, in other words, is whether an ad contains a sin of commission, rather than merely a sin of omission. Distinguishing a previous case that involved omission only, the court of appeals in Team Working For You explicitly determined that “the three statements at issue here are not merely incomplete but contain false statements or statements that are not true.” The same court presumably would reach the same conclusion about “Ohio Outsourced,” given the parallels between its content and what the court found wrong with the anti-Spraggins ad.
If “Ohio Outsourced” were ever the subject of litigation, it is easy to imagine some of the points the Media Fund’s lawyers would make in an effort to distinguish it from the anti-Spraggins ad in Team Working For You. “Ohio Outsourced” is a TV ad, whereas the anti-Spraggins ad appeared in print. The “Bush says he’s going to help companies outsource” assertion comes from the mouth of an average Ohio citizen depicted in the TV ad, whereas all three misstatements in the anti-Spraggins ad come directly from the Team Working For You committee under the banner: “RESIDENTS, REMEMBER THESE FACTS . . . .” It can be argued, then, that the “Bush says” assertion must be understood as a mere dramatization of a political point, not to be taken literally, whereas the readers of the anti-Spraggins ad are admonished to taken what’s written there as the definitive truth.
On this analysis, the “Ohio Outsourced” ad should have some latitude to stretch the truth, as part of its dramatic effect, that’s not available to the anti-Spraggins ad. The argument, moreover, would find some support in the doctrine of political hyperbole, which holds that some statements made in the heat of a political argument cannot be taken as literally truth. This doctrine has been used to protect from liability such assertions as “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” The speaker really didn’t mean to convey an intent to assassinate the President; he was only exaggerating to express the intensity of his opposition to the Vietnam War. Political cartoons also are protected from liability under the political hyperbole doctrine, because readers understand that their exaggerations are not intended to be taken as literal truth.
One wonders, however, whether the same court that decided Team Working For You would consider the political hyperbole doctrine to be applicable to the “Ohio Outsourced” ad. Although a TV dramatization, it has no cartoon-like quality at all. Rather, it is a series of serious and soft-spoken statements by Ohio citizens concerning the problems of outsourcing. At the very moment that one of the residents makes the “Bush says he’s going to help companies outsource” statement, the following graphic appears on the screen: “for information on the Bush job record: BushOutsourcingJobs.com”([which lead to the Media Fund’s web site, with its factual back-up for the ad). This graphic seems comparable to the “REMEMBER THESE FACTS” headline in the anti-Spraggins ad; it’s telling the audience that what it’s saying is correct. Then, at the end of the ad, the Media Fund, again in a soft tone, announces that it’s responsible for the ad’s content. Given all this, it would seem reasonable for a viewer to believe that the factual assertions contained in the ad should be taken as true. Consequently, it would seem an uphill battle to get the court that decided Team Working For You to distinguish the “Ohio Outsourced” ad from the anti-Spraggins ad under the applicable law governing false campaign ads in Ohio.
It is important to remember, of course, that the Ohio Court of Appeals does not have the last word on issues of Ohio law. Although the Ohio Supreme Court declined to review the appeals court’s decision in Team Working For You, it might well be willing to consider a case involving the Media Fund’s ad, in light of the prominence of the presidential campaign. It is possible that the highest court in Ohio would construe the relevant statute, section 3517.21(B)(10) of the Ohio Revised Code, more strictly, so that the operative term “false statement about a candidate” must be a statement that lacks any basis in truth. But there is no precedent from the Ohio Supreme Court to suggest that it would. Quite the opposite: the McKim decision, which imposed liability for a cartoon depicting a hand under a table (because it suggested bribery), indicates that the high court favors a standard that asks whether the ad conveys a meaning that is true or false. Assessed against that standard, “Ohio Outsourced” is presumably in trouble, since – as FactCheck.org explains in its analysis of the ad – it conveys a meaning about Bush’s public position on outsourcing that is contrary to reality.
The U.S. Supreme Court, too, could choose to weigh in on this case, should “Ohio Outsourced” become the subject of litigation. It is conceivable that the U.S. Supreme Court could rule, as a requirement of the First Amendment to the U.S. Constitution, that no state may punish the sponsor of a campaign advertisement for false statements about a candidate’s record or policy views, even when those statements are intentionally or recklessly false, unless those falsehoods are also defamatory (meaning that they impugn the integrity or character of the candidate). Again, the relevant precedents give no indication that the U.S. Supreme Court would adopt such a position, but they do not foreclose it either.
The Media Fund might also try to persuade either the Ohio or U.S. Supreme Court that it did not act with reckless disregard of the truth, even if the Ohio Court of Appeals would reject this argument based on its Team Working For You decision. The Media Fund might point to its web site, with its material to back up the assertions in the ad, as proof that it did not act recklessly. Like the Ohio Court of Appeals, however, these two higher courts might view the web site as demonstrating just the opposite. Both supreme courts have equated deliberate indifference to the truth with recklessness, the Ohio Supreme Court in McKim and the U.S. Supreme Court in Masson v. New Yorker Magazine, 501 U.S. 496 (1991), another case of putting words into someone’s mouth. In Masson, the magazine had tape recordings to back up its story, but the words quoted in the story were deliberately different from the words on the tape. In the same way, the Supreme Court might conclude that the Media Fund deliberately deviated from its own record of what Bush actually said when it chose the content of its ad.
In any event, whatever the Ohio or U.S. Supreme Court might decide about “Ohio Outsourced,” the appeals court decision involving the anti-Spraggins ad shows the Media Fund to be at risk of liability under Ohio law. There is never any guarantee that either the Ohio or U.S. Supreme Court will agree to review a case decided by the appeals court. Thus, one must be prepared to assume that the Ohio Court of Appeals will be the last word in any case involving the Media Fund ad. And if that last word is consistent with what this court ruled in Team Working For You, the Media Fund would appear to be in a vulnerable position.