Prompted by this post with news out of Ohio last week, the Election Law listserv had a brief discussion on the constitutionality and potential desirability of regulating false or misleading campaign speech. (See Dan Lowenstein’s initial post here.)
In my look at those cases in which states have tried to regulate false and misleading campaign speech (in preparing a chapter for my election law casebook with Lowenstein), I was struck by how ineffective any kind of remedy might be that could help undo the negative effects of a false and defamatory statement before an election.
I was reminded of that point last week, when the Drudge Report began by circulating this rumor of an affair between John Kerry and a former A.P. intern. After circulating on blogs for the week, the story has been picked up by some of the mainstream press, but so far not a word yet in the New York Times or the Washington Post. (See Tim Noah’s column on ways to cover the story without appearing to cover the story.)
I have no idea if the story is true or not. But assume that the story is false, and it is circulated precisely to take some steam out of Kerry’s rise now against George Bush. It is hard to imagine how any “truth commission” could ferret out the facts in time to make a difference in the election. Nor is is easy to believe that anyone with sufficient motive to circulate a false speech is going to be much deterred by the possibility of a defamation suit after the election.
Is seems likely that—even putting aside constitutional problems—there is no legal sanction that could be effective to curb false campaign speech.