arrowSection 3.2 - False Campaign Ads

This topic is monitored by Moritz Law Professor Edward B. Foley

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Annotated Bibliography

Conn, Lance. "Mississippi Mudslinging: The Search For Truth in Political Advertising." Mississippi Law Journal 63 (1994): 507-535

Conn argues that imposing rigid rules on campaign speech is not only unconstitutional but does not effectively rid the campaign of misleading advertising. Mississippi is one of the states that prohibits false campaign claims; Conn finds that this statute not only makes a legally irrelevant distinction between the public and private lives of candidates but also falls outside of defamation standards set forth by the Supreme Court. The Mississippi statute should be tailored to stay within the applicable Court guidelines, cover statements made by a candidate about himself and have a requirement that allegedly defamatory statements have an actual impact on a candidate's prospects. Ideally, the remedy to misleading or false speech is not regulation but more speech.

Kane, Thomas. "Malice, Lies, and Videotape: Revisiting New York Times v. Sullivan in the Modern Age of Political Campaigns." Rutgers Law Journal 30 (1999): 755-815

Kane suggests that New York Times needs not be skirted to allow for justice in campaign defamation as it already allows for a remedy. Given the daunting prospect of proving 'actual malice' there could be another, equitable solution; a court could make a factual determination about the truth or falsity of an advertisement and enter the result into the public record. This would not only vindicate the reputation of someone falsely accused and give them a de facto claim against other such false statements but let the truth be known to the larger electorate as determined by a neutral arbiter. This, in turn, gives the power back to the voters.

May, Peter F. "State Regulation of Political Broadcast Advertising: Stemming the Tide of Deceptive Negative Attacks." Boston University Law Review 72 (1992): 179-216

May finds that deceptive negative campaign ads discourage participation by both qualified candidates and the electorate while at the same time giving short shrift to the complex issues that ought to be discussed. May proposes that Massachusetts adopt campaign codes similar to other states - Montana and Ohio are used as examples - that set limits on the behavior of candidates and the tactics that they can use. On top of this, legislation preventing the distribution of 'false statements' about another candidate would be prohibited. Finally, political advertisements would be limited to those appearances by the candidate or their personal representative; no anonymous advertisements would be allowed.

Richman, Evan. "Deception in Political Advertising: The Clash Between the First Amendment and Defamation Law." Cardozo Arts and Entertainment Law Journal 16 (1998): 667-705

Richman suggests both legal and non-legal techniques for ridding campaigns of deceptive advertisements, all of which square with the First Amendment. Political candidates who make statements about other candidates that are outright lies ought to be liable for defamation. While current law allows for such action the standard applied in cases - actual malice - involving these public persons is so difficult to prove as to be almost useless in preventing the false ads. Richman claims that deceptive ads can meet the actual malice standard but should not be required by courts to do so.