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Law Requiring Candidates "To Obtain and Recite, In Any ... Advertisements, the Explicit Authorization Received from an Endorser" Struck Down

by the Maine Supreme Court. Some key language:

The restriction on speech embodied in section 1014-A is not, however, limited in application to fraudulent or libelous statements made in the context of an election. Instead, section 1014-A sweeps broadly enough to prohibit the use of an endorsement that was actually made.

The fact that the unauthorized use of an endorsement is not necessarily fraudulent is amply illustrated in this case. Mowles's use of the 2004 general election endorsements of Senators Snowe and Collins in his 2006 primary campaign was, as the Commission found, unauthorized. Mowles's flyer, however, did not misrepresent the truth because it included, albeit in smaller type, the fact that the endorsements dated back to October 2004.

Today's society is no stranger to advertising that relies on fine print and other less-than-prominent disclaimers to stay within the bounds of the truth. Although the fairness of these approaches can be questioned, they are generally not, without more, fraudulent. With respect to political endorsements, there are myriad circumstances in which a candidate might publish an endorsement without the express authorization of the endorser and not commit a fraud on the public. In any event, at no point in this proceeding has the State asserted that Mowles's use of the endorsements of Senators Snowe and Collins was fraudulent.

Free speech is accorded great value in our society. Although the State need not "sit idly by and allow [its] citizens to be defrauded," "it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented." Because section 1014-A captures far more speech within its grasp than it can legitimately hold as a fraud-preventing measure, it cannot be sustained by the State's special interest in preventing false statements in an election where time does not allow for such statements to be counterbalanced by the truth. Thus, even if the State's concern regarding fraud were supported by any fact in this record, the statute is not narrowly tailored to address that interest.

J. Aldridge:

... "it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented."

My question is why not? Nothing in the law created a situation of seditious libel under old English common law.
10.25.2008 7:39pm
Eugene Volokh (www):
J. Aldridge: We know, we know, you think the Free Speech Clause should be interpreted according to its original meaning (and you also have a very firm but not particularly well-defended view of what that original meaning was). Your posts are often pretty opaque, but they're clear enough on that.

Can we just stipulate that this is your view, and skip the obligatory comment to that effect -- especially given that it's of very limited practical utility in discussing modern free speech law as it actually is? If you actually have some interesting comments or evidence on original meaning that we haven't heard from you before, that's a different matter. But at this point, your comments on the subject are pretty much a broken record, playing a tune that's not terribly practically to understanding or resolving current free speech controversies.

And to answer your question as to "why not," I take it the answer is "because the Maine Supreme Court believes itself to be bound by that modern free speech law, and in particular by U.S. Supreme Court precedents establishing that law" -- a pretty familiar position for courts to take in the U.S., and one that's unlikely to change any time soon.
10.25.2008 7:48pm
J. Aldridge:
Prof. Volokh said:

Can we just stipulate that this is your view, and skip the obligatory comment to that effect -- especially given that it's of very limited practical utility in discussing modern free speech law as it actually is?


My view? It was Jefferson's Madison's, Cooley's and all the States had all kinds of laws against speech and the press except seditious libel where truth could never be a defense.

The Democratic-Republican caucus included the following in their 1800 platform: "An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents."

Hello, remember John Peter Zenger? His trial is why we have the liberty of speech and the press in American constitutions!

If you actually have some interesting comments or evidence on original meaning that we haven't heard from you before, that's a different matter.


Yes, see here the finest (IMHO) proof of the meaning ever written backed by absolute truths.
10.25.2008 8:11pm
Dilan Esper (mail) (www):
Aldridge:

This is a legal blog. Not a historical blog. If you want to debate constitutional history, go to a historical blog and wait for a post on the Constitution.

However, if you want to discuss THE LAW, you need to understand that there are prevailing Supreme Court cases. They may be wrong or right, but they are the focus of discussion here.

Look, if you would just say something like "I agree (or disagree) that under the prevailing precedent X, the Maine decision is correct, but I think that precedent X should be overturned for the following reasons", that would be fine. But it really isn't useful to simply constantly rail about the fact that the Supreme Court took a different path in interpreting the constitution than you think they should have. The repudiation of seditious libel laws in New York Times v. Sullivan is now 4 decades old, and not one justice is calling to go back to the old state of the law. So why don't you give us your insight on how the MODERN precedents fit together and not keep going on like a broken record?
10.27.2008 6:03pm
Oren:
Dilan, I was thinking about this yesterday (seriously) and I think the point is thus. If judges are unprincipled in discarding the True Meaning of the Constitution(TM) and replacing it with their own invention then there is really nothing binding them to anything at all. In that sense, if you really believe what JA believes, there is no point in discussing the consequences of current doctrine because it doesn't really mean anything and it might not be followed anyway.

Of course, I believe in a more dynamic Constitution whose words are meant to be interpreted in the present tense. Nevertheless, the more I think about it, the more JA's broken-record ranting makes a perverse sense of its own.
10.27.2008 6:30pm
Dilan Esper (mail) (www):
Oren:

I am a practicing lawyer. I have views about the law (as you have seen in the comments threads here). Some of my views are reflected in current doctrine. Some are not.

The thing is, I am also trained to argue the law where it doesn't reflect what I think it should be. For instance, I don't agree at all with Raich v. Ashcroft. But if you asked me to analyze whether a particular exercise of the commerce power was permissible under Raich or impermissible under United States v. Lopez, I could perform that analysis.

In other words, I know there are people who think the Constitution has meaning X and that everything out there is unprincipled. I don't think much of those views to begin with, as they radically oversimplify constitutional interpretation. But that's not the problem here.

The problem here is the inability to recognize that whether cases are rightly decided under the current precedents is tremendously important, because that is the analysis that people should base their conduct on and which determines whether people recover or pay damages and whether they go to jail and whether they lose custody of their kids and whether they get the free speech rights violated and a bunch of other things.

Aldrich doesn't seem to care about the issues that actually affect people's lives, in favor of an argument that he lost long ago and that isn't going to turn around.
10.27.2008 9:56pm
Oren:
Yup, 100%.
10.27.2008 11:23pm
J. Aldridge:
Oren and Eugene prefer burning the Starry Messenger so that the scriptures (err law) may not have to come under the scrutiny of truth.
10.28.2008 2:40am
Dilan Esper (mail) (www):
Aldridge:

Don't you think there's a big relevant distinction between Scripture and law, though?

Specifically, if you are a true believer, getting the meaning of Scripture right is a task upon which hangs the ultimate consequences. In contrast, a society that repeatedly gets the original meaning of the Constitution wrong may be argued to be misinterpreting the Constitution, but may be able to function just fine, depending on whether the rules that people agree to are fair and just.

That's because the purpose of the two things are so different. As Holmes said, law is not a brooding omnipresence in the sky. But to the devout religious believer, the meaning of Scripture is one.
10.28.2008 3:49pm
J. Aldridge:
Uh Dilan? It isn't society or any democratic process that is misinterpreting the Constitution here.

Let's say Congress decides to invalidate trade laws of another nation on the grounds the Constitution gives them the power under the clause to regulate commerce with nations and the power to declare war. Let's say the Supreme Court agrees, would you argue it is merely a matter of misinterpreting the Constitution?
10.29.2008 1:13am
Dilan Esper (mail) (www):
Aldridge:

The fact that it is the judiciary (which is unelected, but which is appointed by democratically elected representatives) "misinterprets" the Constitution really doesn't change my point. My point is that a society can hum along just fine living with judicial misinterpretations of the Constitution. In some instances, it's even a dumb idea to try to correct them (because a bunch of subsidiary rules and patterns of human conduct have been built around them). In other instances, perhaps the "errors" are correctable but they also aren't doing a tremendous amount of harm.

The point is exactly what Holmes said about the life of the law not being logic but experience, and law not being a brooding omnipresence in the sky. There's certainly value in getting the law "right", but that isn't the only important value in this world. Societies can continue to prosper even in circumstances where courts have gotten the law "wrong".

More importantly, though, you miss why we are in this discussion. We are here because you refuse to even attempt to interpret the law according to currently binding precedents. Again, nobody's saying you have to give up your views of original meaning; just that if you are, say, a citizen wishing to express him- or herself, what the courts currently say about freedom of speech is a lot more useful information for your guidance than what, in your perfect world, you think courts SHOULD say about freedom of speech.
10.29.2008 3:28pm
J. Aldridge:
Dilan said, "We are here because you refuse to even attempt to interpret the law according to currently binding precedents."

When a precedent has basis in organic law then I'm all for it. You like many lawyers prefer to hide behind precedent rather than face organic written law or democracy (which explains why anything people or their agents do these days is unconstitutional).
10.29.2008 8:59pm
Dilan Esper (mail) (www):
Aldridge, we aren't "hiding". Our clients, who pay us, want to know whether they are going to go to jail or get sued or be able to collect damages. And that depends on the precedents, whether or not they are consistent with what you believe "organic law" to be.
10.30.2008 2:57pm