This topic is monitored by Moritz Law Professor Edward B. Foley
Opinion & Analysis: A Swift Boat Update: Falsity
When the first ad sponsored by Swift Boat Veterans for Truth (SBVT) surfaced a few weeks ago, there was no way to determine the veracity of its main accusation: "John Kerry lied to get his bronze star." (An initial analysis of the ad under Ohio law is here; this update considers only the main accusation and not others contained in the ad.) The supposed lie was Kerry's claim that, when he pulled Jim Rassmann out of the river to save his life, he was under enemy fire. The dispute seemed one of differing recollections. Several SBVT members, who were on the same mission with Kerry that day (although not in the same boat), swear that there was no such enemy fire. Rassmann, like others on Kerry's boat, remembers that there was.
Since then, however, the Washington Post has uncovered documents that corroborate Kerry's version of the events. One document is the Bronze Star citation for one of these SVBT members, Larry Thurlow, and it says that "all units began receiving enemy small arms and automatic weapons fire from the river banks." Although Thurlow now claims that his own Bronze Star citation is based on Kerry's fraudulent account of the day's events, the Post's reporting explains how Kerry unlikely would have been in a position to describe what occurred on Thurlow's boat that day, as the Thurlow citation also recounts. A damage assessment of Thurlow's boat also mentions bullet holes from that mission.
Moreover, several additional witnesses have now come forward to support Kerry's account and refute the SVBT accusation. Wayne Langhofer, who was on the boat directly behind Kerry's, told the Post that "he distinctly remembered the 'clack, clack, clack' of enemy AK-47s, as well as muzzle flashes from the riverbanks." "There was a lot of firing going on, and it came from both sides of the river," he said. Significantly, SVBT had contacted Langhofer to join their cause, but he declined; presumably, they were on notice that he did not agree that Kerry was lying about what had happened.
Even more significant is an Associated Press interview with Robert Lambert, reported in the Los Angeles Times on Friday, August 27. Lambert, like Kerry and Thurlow, received a Bronze Star for heroism during that same mission. Lambert's was for pulling Thurlow out of the water after Thurlow had tried to rescue someone else. "Thurlow was far too distracted with rescue efforts to even realize he was under fire," Lambert told A.P. What is more, Lambert apparently has no motive for aiding Kerry other than to tell the truth: "I don't like the man himself, but I think what happened happened, and he was there."
By contrast, it has also surfaced in the last several weeks that SBVT has a motive for discrediting Kerry. The leaders of that group have always abhorred his active opposition to the war in Vietnam after his return, and particularly his assertion that the U.S. military committed atrocities there. The accusation that Kerry lied to get his Bronze Star is part of an effort to undercut his claim to be a war hero, because they see him as a traitor not a hero.
The question now is whether, in light of all the new evidence that has surfaced in the last several weeks, SBVT's accusation that "Kerry lied to get his Bronze Star" could be found deliberately or recklessly false, in violation of Ohio Revised Code 3517.21(B)(10). (For background on the law, see here.) The statute requires proof of falsity by clear and convincing evidence for the Ohio Elections Commission to issue a public reprimand or civil fine (up to $5000 per violation). But that standard is arguably met by the documents supporting Kerry and undercutting the SBVT accusation. Likewise, the emergence of new witnesses who are neither supporters of Kerry's presidential campaign nor SBVT members, yet firmly remember the events Kerry's way, add substantial weight to the conclusion that Kerry is telling the truth about the presence of enemy fire, whereas SBVT is not. In any event, the Commission could so conclude, even when applying the difficult clear-and-convincing standard of proof. (Criminal charges would require the much stricter beyond-a-reasonable-doubt standard, and there is no contention that a prosecutor would be able to meet this burden.)
Likewise, although proving a falsehood to be deliberate or reckless is usually very difficult, here there is the evidence that SBVT ignored both the documents they knew to exist (like Thurlow's own Bronze Star citation) and the fact that others, like Langhofer and Lambert, who participated in the same events and who are no friends of Kerry, still remember what happened the way he did. Moreover, the recklessness of a false accusation is, in part, the function of the seriousness of the accusation leveled against an individual. The greater the damage a false accusation can do, the greater the care one is obligated to undertake regarding its truth or falsity before one levels the charge. In this case, the accusation that "Kerry lied to get his Bronze Star" is hugely serious: it could destroy his presidential campaign, which is precisely why SBVT made the charge. But before making it, they were obligated not to do so recklessly, given the consequences of a false accusation. Because they had no independent support for their charge – and at the same time knew of both documentary evidence and independent witnesses contradicting it – they arguably acted in reckless disregard of the truth or falsity of their charge.
They had no basis for claiming that Kerry was lying even if they remembered events differently than he did. Perhaps Kerry's memory was faulty (and theirs was not), but since they knew that the documents supported Kerry's memory – as did other independent eyewitnesses – they had no reason for contending that Kerry intentionally fabricated a falsehood about what had happened. For this reason, the Ohio Elections Commission reasonably could conclude that SBVT acted recklessly in charging that Kerry lied to get his Bronze Star.
It is often argued that campaign messages should not be subject to government sanction, including an official reprimand, even if they are deliberately or recklessly false. The argument, essentially, is that the cure is worse than the disease. Even deliberately or recklessly false campaign messages, like the Swift Boat ad (assuming that it belongs in this category), can be rebutted in public debate, as the Swift Boat ad has been, and citizens are free to make up their own minds about which side of the debate to believe. It is unclear, however, that this argument fully takes account of the reality of political discourse in our society. Although the history of the Swift Boat controversy is hardly ready to be written, recent polling suggests that the accusations of the ad have sticking power even if they are subsequently shown to be false by the overwhelming weight of the evidence, both documentary and eyewitness. This polling corresponds to what many campaign observers believe: that negative attack ads are effective even when they can be rebutted by the record, because the public pays more attention to negative attacks than affirmative rebuttals.
Eliminating deliberately and recklessly false accusations from campaign messages would still leave candidates and their supporters with the opportunity for robust and wide-open debate about issues and credentials, including an opposing candidate's character. Even if it is impermissible to say that "John Kerry lied to get his Bronze Star" when this statement is recklessly false, there is still much that SVBT and other Kerry opponents can say to attack his war record. They can still accuse Kerry of betraying his (and our) country by his anti-war protests, including his Senate testimony. They can still question his memory of enemy fire, saying that they remember the events differently, as long as they don't accuse him of deliberately fabricating his version of events when they have no evidence that he did so. And they can even accuse Kerry of willfully distorting the truth about his service in Vietnam, when and if the evidence supports such an accusation, as may be the case with Kerry's claim that he spent Christmas in Cambodia.
At this point, free speech purists will raise the "slippery slope" point: permit the punishment of deliberately or recklessly false statements and mistakes will be made, with the consequence that campaign messages will be punished even when not deliberately or recklessly false. But this "slippery slope" argument is also somewhat naïve. Bipartisan election commissions are unlikely to find a Republican or Democratic message to be deliberately or recklessly false unless the message is truly egregious. Moreover, politicians would not want to file complaints that accusations against them are deliberately or recklessly false, unless they are confident of winning their cases, since an adverse ruling would vindicate the other side. And, in the end, the imposition of an official reprimand, or even a $5000 civil fine, is not much of a deterrent.
Thus, it is far from obvious that our system of democracy would suffer if a complaint against "John Kerry lied to get his Bronze Star" accusation were filed with the Ohio Elections Commission – and if the Commission found the accusation to be recklessly false. Such a finding would show that there are limits to the attacks that can be leveled in the course of an election campaign – remote outer limits, to be sure, but limits nonetheless. Groups wishing to run attack ads might begin to think twice about the content of their messages, but such self-censorship, far from being pernicious, would be a beneficial development in our increasingly ugly and irresponsible campaigns. Democratic discourse would remain vibrant, even unruly. But it would suffer less from a particularly insidious kind of campaign message: the baseless attack designed to inflict harm to an opponent even when the record refutes the attack, yet made with the expectation that it will be successful in damaging the opponent anyway.
Neither side in this year's presidential election appears able to refrain from this kind of contrary-to-the-evidence attack. Previously, an examination of a Media Fund ad showed it to be of this type. Now, newly uncovered evidence points to the same conclusion about the Swift Boat ad. Maybe, if the Ohio Elections Commissions conducts a bipartisan investigation into whether both ads are recklessly false, the rhetoric from each side will subside just a bit, so campaign discourse can refrain from entering the indefensible zone.