2009 UCLA J.L. & Tech. 1

The Straight Talk Express: Yes We Can Have a False Political Advertising Statute
by Colin White*

I. Introduction

[¶1]Thomas Jefferson was a madman,1 Abraham Lincoln was a traitor,2 and Andrew Jackson was a bloodthirsty brawler.3 While these published remarks about three of America’s greatest Presidents seem blasphemous, political opponents and the press subjected each to such accusations both during the campaign and after the election.4 As the previous examples illustrate, negative attacks, whether true or false, have been a part of American politics from the birth of our country.5 The election of 2008 was no different.6 Elizabeth Dole, the incumbent Senator from North Carolina, ran an advertisement entitled “Promise,” telling viewers that challenger Kay Hagan attended a “secret” fundraiser held “in her honor” by the leader of a political action committee called Godless Americans.7 The advertisement then showed clips of Godless Americans lobbyists proclaiming “there was no Jesus” and “there is no God to rely on” before saying Kay Hagan “hid from cameras, took Godless money,” and finally asking, “What did [she] promise in return?”8 The advertisement ended with a woman’s voice stating, “There is no God.”9 The advertisement was one of the most controversial of the 2008 election, and most people inferred that Elizabeth Dole was suggesting Kay Hagan either did not believe in God or would advocate for the Godless Americans, which directly contradicted Hagan’s history of teaching Sunday school classes.10 The advertisement was deliberately misleading and was considered to be slanderous by many.11 Hagan filed a defamation lawsuit, but later dropped the suit after she won the election.12 North Carolina was not the only state in which controversial campaign ads aired: in Minnesota, the opponent of Indian-American congressional candidate Ashwin Madia allegedly darkened the skin tone of Madia in three pictures in an ad.13

[¶2]Next year will mark the 200th year since Thomas Jefferson left office, and while the negative false attack ads of politics have not changed, the medium by which those attacks reach the voters has evolved dramatically.14 Yet, the “actual malice” standard for proving defamation against a public official has remained unrevised from its creation in New York Times Co. v. Sullivan.15 The Presidential campaign of 2008 has been called a seminal and transformative election that will influence the way campaigns are run for many years.16 At the basis of this classification is the role the Internet played in the campaign; the Obama campaign, in particular, utilized YouTube to post campaign ads17 and text messages to remind supporters to vote.18 The Internet has evolved from a network of military computers to “the most participatory marketplace of mass speech” in the world.19 In 2008, more people than ever relied on the Internet to get information about political candidates.20 The Internet also surpassed newspapers as the source in which people get their national and international news.21

[¶3]Due to the rapid evolution of the Internet and content sharing websites like YouTube, false campaign ads with defamatory content reach more people more quickly and for a longer duration.22 False campaign ads almost always take the form of negative attacks against an opponent because they get more coverage and are very effective.23 In the 2006 Congressional midterm election, ninety percent of ads were negative, causing seven in ten Americans to believe “not much” or “nothing at all” of what they heard in political ads.24 The influx of negative, and many times false, campaign ads has lowered the discourse of political debate, misled voters, prevented actual issues from being debated, and alienated Americans from politicians and the political process.25 Once a false and defamatory ad is broadcast, it is nearly impossible to repair the damage due to the lack of appropriate remedies available to politicians and the difficulty of prevailing in a defamation suit.26

[¶4]This Comment reexamines the New York Times Co. actual malice standard for defamation against a public official in the age of the Internet campaign.27 It considers the application of case law to the regulation of defamatory political advertisements.28 Its focus will be limited to false campaign ads aired on television and posted online by politicians.29 Part II of this Comment provides historical background on defamation as it pertains to public officials and summarizes the regulations of Internet speech that relate to defamation of a public official.30 Part III examines Congress’s recent approach to the regulation of false advertising through campaign finance reforms that indirectly attempt to regulate potentially defamatory campaign ads.31 Part IV demonstrates that the actual malice standard should be retained because it can be adapted to modern times, does not violate the rulings of the Court regarding Internet speech or campaign finance, and adequately protects political speech.32 Finally, Part V proposes the creation of federal statute that retains the actual malice standard and requires a mandatory retraction to ensure political speech is not chilled, to protect media defendants from ruinous lawsuits, and to give politicians a remedy that will limit damage to their reputation and deter future false ads.33

II. Background

[¶5]The common law of defamation, and more specifically libel, against public officials began in a most unlikely place.34 Before critically analyzing the actual malice standard, it is necessary to trace the origin of common law libel against public officials and its further constitutionalization in subsequent cases. Part II first discusses the landmark cases involving libel against public officials and then briefly summarizes the regulation, or lack thereof, of Internet speech.

A. Libel Against Public Officials

[¶6]Libel is defined as “a method of defamation expressed by print, writing, pictures, or signs.”35 A statement is libelous per se if the words are of such character that an action may be brought upon them without the necessity of showing any special damage as the law will presume any one so slandered must have suffered some damage.36 One would assume that a false advertisement against a public official would be libelous per se; however, the Supreme Court, in New York Times Co., created an additional hurdle for public officials attempting to bring a libel suit: actual malice.37

1. New York Times Co. v. Sullivan

[¶7]The Supreme Court’s commitment to protecting speech that potentially defames public officials has its origins in a New York Times (“the Times”) ad that did not mention a public official by name.38 L.B. Sullivan was a Commissioner of the City of Montgomery Alabama.39 Sullivan sued the Times and four ministers working on the civil rights movement for publishing an editorial advertisement that falsely described certain events as “a wave of terror.”40 Sullivan alleged that the advertisement falsely implicated him in several arrests of King, the bombing of King’s house, and the attempted starving of students.41 Such allegations reflected poorly on Sullivan.42 Sullivan sent a letter to each minister and the Times demanding a retraction.43 While none of the individual petitioners responded, the Times sent him a letter.44 Sullivan filed suit days after receiving the correspondence.45

[¶8]The trial judge instructed the jury that the advertisement was libelous per se, meaning that the Times would be liable if it was found that they had published the advertisement and the statements published concerned the respondent.46 The jury took just over two hours to return a verdict of $500,000 in favor of Sullivan.47 The Supreme Court of Alabama affirmed the lower court’s decision, finding that the matter complained of subjected Sullivan to public contempt and was thus libelous per se.48 The Court found it common knowledge that the commissioner controls police and fire personnel.49 Against this backdrop and during the turbulent years of the civil rights movement, the United State Supreme Court granted certiorari.50

[¶9]Justice Brennan delivered the landmark opinion of the Court and was joined by six other Justices.51 Justice Brennan decided the case against the backdrop of a commitment to open, free, and biting attacks on government officials.52 The Court, in reversing and remanding the decision of the Alabama Supreme Court, declared that the Constitution required a public official, in order to recover damages, to prove a statement about his conduct was made with actual malice.53 From the beginning of the opinion, Justice Brennan stressed the long history of case law emphasizing the protection of freedom of the press.54 The majority opinion based its holding on three distinct but interrelated rationales: (1) the analogy to seditious libel; (2) the concern with monetary damages; and (3) the fear of a “chilling effect” on political speech.55 It is important to understand the basis of the Court’s rationales before discussing subsequent cases that expand and clarify the Court’s ruling in New York Times Co.

a. The Analogy to Seditious Libel

[¶10]The Times sought to analogize the Alabama Statute56 to the Sedition Act of 1798,57 which allowed the government to penalize a publisher of libelous words.58 On appeal to the Supreme Court, the Times successfully did just that.59 Justice Brennan referenced the Sedition Act in his opinion, recounted its history, and proclaimed it unconstitutional.60 He also stated that the Alabama statute was in fact worse than the Sedition Act or any criminal statute, because the monetary damages established by the Alabama statute were one hundred times greater than those provided by the Sedition Act.61 The survival of not only newspaper editorials, but of the freedom of the First Amendment itself, was an additional concern for the Court.62 While the backbone of Justice Brennan’s opinion was the analogy to seditious libel, the analogy broke down when the Court expanded the scope of actual malice in subsequent decisions.63

b. Monetary Damages

[¶11]Despite its historical comparisons to the Sedition Act and concern for First Amendment freedoms, New York Times Co. was about money.64 The editorial in the Times was a paid advertisement.65 Sullivan and the Alabama courts contended that freedom of speech guarantees did not apply because the purchased editorial was a commercial advertisement.66 The Court did not accept the argument.67 Justice Brennan classified the advertisement as non-commercial speech because it stated an opinion, protested alleged abuses, and asked for money.68

[¶12]The fact that the four ministers had paid the Times for publishing the advertisement was immaterial, according to the Court.69 Nevertheless, in making this assessment, the Court acknowledged that in the modern day, protected speech is intertwined with profit-making activities of newspapers, which must be protected.70

[¶13]Additionally, the Court examined a second financial dimension in New York Times Co.: the size and nature of the damage awards.71 An individual’s interest in their reputation is not easily measured.72 While the injury of defamation is a serious one, the Court was concerned that an abusive assessment of damages based on a tenuous connection between demonstrated harm and awarded damages would result.73 The high amount of damages, the Court feared, would threaten the very existence of the American press.74

c. Chilling Effect

[¶14]Despite the Court’s emphasis on the Sedition Act of 1789 and concern with monetary damages, the fear of chilling speech is the rationale cited as the basis for protecting it.75 Until New York Times Co., the truth of the statement separated the guilty from the innocent in libel cases.76 Justice Brennan’s majority opinion applied protection from libel suits to some types of speech that were potentially false.77 Instead of the bright line true/false test, the Court looked at the subjective belief of the party who uttered the libelous remarks.78 While untrue speech has no value in its own right, the actual malice standard made untrue speech worthy of First Amendment protection only when it could not be regulated without “chilling” truthful speech.79 Justice Brennan heavily emphasized the “chilling” effect in his opinion and this rationale provides a foundation upon which to create a federal campaign libel law.80

[¶15]Originally, New York Times Co. narrowly applied to instances where the truth of the advertisement was not at issue.81 In subsequent decisions however, the Court expanded the ruling in New York Times Co. by defining a public figure and applying the actual malice standard to private citizens and to criminal libel laws.82

2. St. Amant v. Thompson Ð Clarifying Actual Malice

[¶16]In St. Amant, the Court clarified the meaning of actual malice by defining reckless conduct.83 This sub-part examines the Court’s reasoning in St. Amant in preparation for a discussion of Brown, where the Supreme Court applied the actual malice standard of New York Times Co. and St. Amant to false campaign advertising.84 This standard was first proclaimed in New York Times Co. and then clarified in St. Amant and Brown; the Court’s reasoning in those cases legitimizes this Comment’s proposal.85

[¶17]The controversy in St. Amant involved a televised speech of a candidate for public office.86 During the speech, St. Amant read an interview he had conducted with a member of a local union that implicated Thompson, the deputy sheriff for East Baton Rouge parish, in accepting money from the president of that union.87 Thompson filed a defamation suit, claiming the publication of the speech had inferred gross misconduct on his part.88 The trial court found for Thompson and awarded him $5,000 in damages; the Louisiana Court of Appeals reversed, noting that there was no proof of actual malice on St. Amant’s behalf, which was required by the recently decided New York Times Co. case.89 The Louisiana Supreme Court reversed the Court of Appeals because there was evidence that St. Amant recklessly disregarded the veracity of the statements against Thompson.90 The United State Supreme Court granted certiorari and reversed.91

[¶18]The Court, while admitting that “reckless disregard” could not be defined in one discrete definition, found that St. Amant had not recklessly disregarded the accuracy of his statements about Thompson.92 The Court looked to case law for guidance as to a clear meaning of reckless publication.93 The Court found that false publication is not reckless as measured by what a reasonably prudent man would publish or investigate.94 Instead the publisher had to seriously entertain the truth of the publication but decide to publish nonetheless.95 While acknowledging the possibility that such a standard would allow recovery in fewer situations, the Court resigned itself to the fact that in order to protect publications that are true, the First Amendment must protect erroneous publications as well.96

3. Brown v. Hartlage Ð Actual Malice Applied to False Campaign Speech

[¶19]The Court in St. Amant further defined the actual malice standard of New York Times Co., but it was not until Brown that the Court applied the actual malice standard to false campaign speech by a public official. While some scholars believe Brown was weak precedent and should not apply to false campaign advertisements, it is one of the few and most notable cases in which the Court applied the actual malice standard in New York Times Co. to false campaign speech.97 The issue in Brown concerned a promise made by a candidate during a campaign that was against the law.98 The Court, unlike in previous defamation cases, was asked to void an election because of the promise.99 Brown illustrates a void in libel law that requires a federal statute to regulate false campaign advertising.100

[¶20]Brown sought a county commissioner seat in the general election in 1979.101 During a televised press conference, Brown accused Hartlage of fiscal abuse.102 To prove that he would act differently, Brown pledged to halve the salary of commissioner if he were elected.103 Unbeknownst to Brown, promising to halve one’s salary was against the law in Kentucky as a violation of the Kentucky Corrupt Practices Act.104 After realizing that his words were illegal, Brown issued a retraction admitting his mistake and promising to take proper legal steps to decrease the salary.105 Brown won the election by 10,151 votes and Hartlage filed action seeking the election to be declared void.106 The trial court found that because Kentucky law fixed the salary of a commissioner, a candidate could not promise to reduce it without violating Kentucky law.107 Nevertheless, the court refused to void the election, reasoning that because a retraction was made, Brown was fairly elected.108 The Kentucky Court of Appeals reversed and stated that a new election should be held.109

[¶21]The Supreme Court of the United States granted certiorari and reversed the Kentucky Court of Appeal’s decision.110 Once again, Justice Brennan wrote the majority opinion for the Court, and began by acknowledging a state’s right to regulate its electoral process.111 The Court emphasized the role that the free exchange of ideas has in a constitutional democracy.112 The political candidate, the Court stressed, did not abandon the protection of the First Amendment when he ran for office.113 In order to restrict such a fundamental right as free speech, the state must have a compelling interest in doing so.114 The Court found that a political candidate’s promise to reduce his salary may not be protected by the First Amendment if such a promise could be deemed a “corrupting agreement” or “solicitation.”115 Thus, electoral speech is protected where: (1) voters find self-interest in a candidate’s commitment; (2) the benefit to the voter is achieved through a normal process of government, instead of a private arrangement; and (3) the statement is not made with a reckless disregard for the truth.116 The Court found that Brown satisfied the elements for protected electoral speech.117 To nullify the election under these circumstances would be “inconsistent with the atmosphere of robust political debate protected by the First Amendment.”118

[¶22]The New York Times Co., St. Amant, and Brown decisions provide the basis upon which the Court evaluates false campaign advertisement cases.119 New York Times Co. created the actual malice standard, St. Amant defined “reckless disregard” to mean whether a person would entertain doubt as to the veracity of the statement, and Brown applied the actual malice standard to speech made by public figures. Next, this Comment will briefly explore the regulation of the Internet in regard to protected political speech.

B. Regulation of Political Speech on the Internet

[¶23]Before this Comment examines the present state of the law regarding false political campaign advertising and the Internet’s role in a remedy, this sub-part briefly examines the history of the Internet regulation that is relevant to political speech (including false campaign ads that may be posted on the Internet).120 The Internet, as this sub-part will detail, is a relatively new medium of communication and the Court’s regulation of it as it relates to political speech has been sparse.121 While the Internet removes the barriers of race, class, and religion from free speech forums, the anonymity of the Internet allows communication of defamatory, indecent, and immoral behavior with little or no consequences to the speaker.122 Each forum of speech allows people to express their views, but only the Internet provides an instantly interactive forum that allows anyone with access to advocate their position to multitudes of people.123 There is a delicate balance between enacting enough regulation to prevent the Internet from becoming a “Cyber wasteland” and enacting excessive regulation that has a chilling effect on free speech.124

[¶24]At the heart of the Internet regulation debate is whether the Internet is most similar to broadcast or print media and should be regulated as such.125 While Internet is unique in that it is mostly text based, yet allows for immediate interaction, similar to speech.126 During its early years, the Internet was regulated solely by private entities that owned or controlled access to the Internet and the forums of free speech.127 Regulation of speech by private entities was not limited to Internet Service Providers; Internet search engines have also regulated advertising links with political language in them.128 On one occasion, Google removed a link that advertised a book about the detainees at Abu Ghraib and Guantanamo Bay.129 On another, a link was removed that led to an article critical of President George W. Bush.130 The Communications Decency Act was Congress’s first attempt at regulating the Internet.

1. The Communications Decency Act

[¶25]In 1996, for the first time, the United States Congress passed a law directly regulating speech on the Internet.131 President Bill Clinton signed the Telecommunications Act of 1996, which included a provision entitled the Communications Decency Act (“CDA”), into law on February 8.132 Although on its face the CDA did not regulate political speech, its vague language was interpreted to reach many forms of protected speech, including political ads posted on the Internet that were available to minors.133 At the core of the controversy was the provision of the CDA that sought to protect minors from viewing offensive speech on the Internet.134 The CDA was merely an update to the Communications Act of 1934, and its sponsor, Senator James Exon, sought to make the new “information superhighway” safe for children.135 The CDA, despite containing a provision that protected Internet service providers and users from torts committed by others,136 was met with strong protest from free speech advocates.137 In the political speech context, Section 230 of the CDA limits a politician defamed online to bringing suit against only one person: the original creator, which in most cases is his opponent.138 It did not take long for the CDA to be challenged on free speech grounds. Less than one year after its enactment, a suit contesting the constitutionality of the CDA reached the Supreme Court.139

2. Reno v. American Civil Liberties Union

[¶26]At the heart of the controversy over the CDA was the use of and lack of a definition for the word “indecent.”140 When Congress passed the CDA it expected, or more accurately, predicted, that the CDA would be challenged, and so it included a provision that provided an expedited path from the district court to the United States Supreme Court for lawsuits challenging the CDA and seeking a preliminary injunction enjoining the Attorney General from enforcing it.141 The American Civil Liberties Union (“ACLU”)142 alleged the CDA violated the First Amendment to the United States Constitution.143 The ACLU focused its complaint on Sections 223(a) and 223(d) of the CDA.144 The parties agreed that a modem should fall under the “telecommunications device” classification of Section 223.145 The ACLU also challenged the section of the CDA inserted by Representative Henry Hyde of Illinois that criminalized speech about abortion transmitted over the Internet.146 The district court ultimately granted the ACLU’s motion for preliminary injunction finding that the word “indecent” was too vague and the affirmative defenses147 were not economically or technologically feasible.148 Janet Reno appealed directly to the Supreme Court.149

[¶27]Justice Stevens began his opinion for the Supreme Court by summarizing the findings of the district court.150 The Court recognized the uniqueness of the Internet and the diverse ways it allows users to communicate with each other regarding many different subjects.151 Justice Stevens noted the control, or lack thereof, publishers have on who is able to view their material, but he also realized there was no centralized point that may block certain websites.152 After examining age verification systems and the definition of sexually explicit material, the Court began its discussion of the CDA, “an unusually important legislative enactment.”153

[¶28]First, the Court addressed and dismissed each of the governments’ arguments in favor of the constitutionality of the CDA.154 The cases cited by the government, Justice Stevens found, raised doubts as to the constitutionality of the CDA.155 Next, Justice Stevens distinguished cases in which the Court had documented special justifications for broadcast medium regulations that were not applicable to other mediums.156 The conditions present in the regulation of television and radio were not present in cyberspace, which had never been regulated by the government.157 The Court found that the chances of a minor accidentally accessing sexually explicit content were slim due to the non-invasive nature of the Internet, a medium users must actively engage in.158 The Court then attacked the vagueness of the CDA, citing the CDA’s inconsistent use of the terms “indecent” and “patently offensive” to describe the same thing.159 Due to the absence of a definition of either term, the Court reasoned there would likely be confusion as to which standard to use and what each standard means.160 The vagueness of the CDA concerned the Court because of the CDA’s content-based regulation of free speech and the fact that the CDA imposed criminal sanctions.161

[¶29]Next, the Court analogized this case to Sable Communications of California. v. FCC, in which the Court invalidated legislation enacted for the sole purpose of protecting children from gaining access to indecent communications because it did not accomplish its goal without imposing an unnecessary restriction on speech.162 Justice Stevens further found that due to the size and nature of the Internet, the CDA created a burden on communication among adults.163 Consequently, the lack of existing technology that could provide an effective way of preventing minors from accessing indecent materials or ascertaining the age of the user of a computer put an insurmountable burden on adult communication.164 The fact that the CDA is not limited to commercial speech, but may cover large amounts of speech with serious educational value, the Court decided, further called its validity into question.165 The Court found that beneficial speech could in fact be deemed “indecent,” and thus would be prohibited.166

[¶30]The Court also rejected the argument that the CDA left open other appropriate channels of communication for adults.167 The Court reasoned that because the CDA regulated speech on the basis of content and not time, place, and manner, it foreclosed certain avenues for adults as well as children.168 Finally, Justice Stevens stated that the CDA did not promote growth of the Internet because the CDA dissuaded citizens from using the medium as a form of communication.169

[¶31]The reaction to the Court’s ruling in Reno was mixed among politicians across party lines.170 Many praised the Court for upholding free speech.171 Others sought to enact a bill that would protect children and speech.172 Nevertheless, the Reno decision was the first instance in which the Court examined the regulation of Internet speech, and it provides a lens through which a federal statute regulating false campaign ads (including ads posted on the Internet), proposed by this Comment, should be examined.173

III. Discussion

[¶32]While the 20th century saw the creation and expansion of defamation law and Internet speech, in the 21st century Congress has attempted to regulate false, and potentially defamatory, political ads indirectly through campaign finance laws.174 Congress created the Federal Election Commission (“FEC”) over thirty years ago to enforce statutes that dealt with the financing of federal elections.175 While the original statue, the Federal Election Campaign Act of 1971, sought to limit advertising, it was not until 2002 that Congress attempted to stop false attack ads by enacting the Bipartisan Campaign Reform Act (“BCRA”).176 States have attempted to deal with false ads more directly, by enacting statutes that regulate political ads.177 This section first examines the parts of the BCRA that pertain to the regulation of political advertisements as this illustrates the statutory approach to the problem of false campaign ads as opposed to the common law approach of the Court.178 Next, this section examines the Court’s constitutional interpretation of the BCRA, including the FEC’s ability to regulate the Internet.179 Finally, this section looks at the 2006 FEC’s interpretation of the BCRA as it pertains to Internet politics.180

A. The Bipartisan Campaign Reform Act of 2002

[¶33]“Soft money” has been the bane of many a politician’s existence, so most were glad to see the BCRA of 2002 make the regulation of “soft money” its central focus.181 “Soft money” is defined as money not given directly to political candidates, but to organizations or committees who work on behalf of the candidate.182 While Congress’s regulation of “soft money” pertained to various aspects of the political process, for the purposes of this Comment, this section discusses only Congress’s regulation of the use soft money to fund issue ads and the endorsement requirement of Section 318.183 The BCRA prohibits corporations and unions from financing broadcast advertisements that specifically refer to a candidate for office sixty days before the general election and thirty days before the primary.184 Proponents of the BCRA hailed this section as a monumental step in stemming the tide of negative ads.185 Critics pointed out the loopholes it provided and argued that it restricted the most basic free speech rights.186 While the BCRA prohibits corporations and unions from running attack ads about politicians two months before the general election, it does not prevent organizations that register as 527 Political Action Committees because they do not advocate the election or defeat of a particular candidate.187 In an attempt to regulate such organizations and limit the potential false attack ads, Congress inserted Section 318 into the BCRA.188 The section, sponsored by Senator Ron Wyden, requires a candidate or organization to endorse the television or radio ad they sponsor.189 It did not take long for political action committees and politicians alike to challenge the constitutionality of both Sections 201 and 318.

B. McConnell v. FEC

[¶34]Senator Mitch McConnell, the Senate majority whip, opposed the BCRA from the start.190 Days after Congress passed the BCRA Senator McConnell and the National Rifle Association (“NRA”) filed a complaint alleging a violation of the First Amendment.191 A three-judge panel struck down nine of the twenty challenged provisions causing nearly every party to the lawsuit to appeal some part of the district court’s ruling.192 However, the Supreme Court, in a 5-4 decision, upheld almost every provision of the BCRA.193 This section examines only the Court’s holding pertaining to its finding that the sections of the BCRA which relate to political advertisements did not violate the First Amendment.194

[¶35]The Court held that Section 201 did not violate organizations’ First Amendment rights even though Section 201 prohibited organizations from running issue ads sixty days before a general election.195 The Court found that the express advocacy limitation created in Buckley was based on a statutory interpretation rather than a constitutional basis.196 Today’s most effective ads, the Court found, did not use the words “vote for” or “elect,” but were no less intended to influence the election.197 According to the Court, ads did not require an “express advocacy line.”198 According to the Court, rigidly requiring the restriction of ads that contained an “express advocacy line” had not combated real or apparent corruption.199 Thus, the Court noted, Congress adopted the BCRA to remedy the weaknesses of this effect.200 Finally, the Court stated that the restriction the BCRA had on free speech was minimal compared with the interest of Congress in preventing corruption.201

[¶36]The McConnell Court took an important step in the prevention of false campaign ads by prohibiting corporations and unions from running issue ads on behalf of the candidate they were supporting.202 However, only four years later, in FEC v. Wisconsin Right to Life, the Court limited the scope of Section 203 of the BCRA by ruling that it only applied to ads that specifically appealed to voters to vote for or against a specific candidate.203 Among the Court’s chief concerns was the chilling effect the ad would have on free speech.204 The sections of BCRA regulating political advertising illustrated Congress’s willingness to regulate potentially damaging political ads, while the Court’s subsequent decisions provide evidence that the chilling effect rationale of New York Times Co. is alive and must be considered if a false political advertising statute is to survive constitutional challenges.205 Next, this section examines the application of the BCRA to the Internet.

C. Shays v. FEC and the FEC’s Response

[¶37]In October of 2002, two members of the House of Representatives206 filed a complaint against the FEC claiming, among other things, that the FEC was incorrect in its determination that the BCRA did not intend Internet communications to be classified as “public communications” and thus able to be regulated as “coordinated communications.”207 The FEC specifically determined “public communications” did not apply to the Internet despite broad language in the BCRA that could include the Internet.208 The FEC believed that the Internet was not a public communication because the BCRA had not specifically mentioned it.209 The district court concluded that the FEC’s interpretation of the BCRA undermined the purpose of the BCRA.210 The district court cited Congress’s repeal of coordination regulations, since the existing rules were too limited in what kind of conduct classified a communication as coordinated, as a basis for its decision.211 Not classifying the Internet as a public communication, the court warned, would allow politicians to evade campaign finance laws and compromise the very purpose of the act.212

[¶38]The FEC, in response to the district court’s decision in Shays, solicited opinions from experts in campaign finance as to how to include the Internet into “public communications.”213 Eventually, it decided to amend the definition of public communications to include communications over the Internet placed for a fee on another person’s website.214 The decision of the FEC limits the scope of this Comment’s proposal as it effectively immunizes bloggers and other online publications.215 This Comment next explains why using the actual malice standard is appropriate to regulate false political ads, including those posted on the Internet.216 Furthermore, it demonstrates that actual malice standard does not need to be reconciled with Reno or McConnell because its scope does not violate the Court’s rulings in Reno or McConnell.217 Finally, it dismisses other proposed remedies for defamed politicians.218

IV. Analysis

[¶39]The Court’s actual malice standard for defamation of public officials and Congress’s limited regulation of political advertisements by campaign finance laws have not provided an appropriate remedy for politicians defamed by false ads.219 They have not revived the American public that has grown jaded by politics either.220 With a new age of campaigns and the utilization of the Internet in the dissemination of false ads, the actual malice standard of Sullivan has new meaning and should be kept to regulate false campaign advertisements.221 Many critics of Sullivan remain, and the combination of common law and Congressional regulation of false political ads leave many questions unanswered, including: (1) whether the actual malice standard is appropriate for regulating false political advertisements? (2) What role does the Internet play in redefining the meaning of “reckless disregard for the truth”? And (3) How should an individual politician’s false ad posted on his YouTube page or personal website be regulated? This Comment first demonstrates that the actual malice standard is appropriate for regulating false political advertisements.222 This is true because a “reckless disregard for the truth” has new meaning with the evolution of the Internet, yet it can still prevent protected speech from being chilled.223 Next, this Comment reconciles any conflict the actual malice standard has with the Court’s regulation of the Internet in Reno and of campaign ads in the BCRA.224 Finally, this Comment examines and critiques proposed alternatives of the actual malice standard.225 Alternate proposals ultimately either do not protect political speech enough or do not provide the defamed party with an appropriate remedy.226

A. The Actual Malice Standard Is the Appropriate Standard for False Campaign Ads

[¶40]While many consider New York Times Co. a judicially sound decision that guarantees the rights of Americans to criticize politicians without fear of reprisal and symbolizes the Court’s support of civil rights movement, Justice White and Justice Scalia believe the case should have been decided differently.227 At the heart of their criticism is the belief that New York Times Co. goes too far in protecting the speaker.228 The actual malice standard essentially protects the speaker from false statements of fact, which have no First Amendment value.229 But it is important to protect speech that is clearly false in order to protect speech that appears false, but is actually true.230

[¶41]Justice White sought to balance the protection of the speaker to prevent chilling true speech with the opportunity for public officials to clear their name of false statements.231 He believed in limiting damages a public official could recover.232 However, this would allow wealthy defendants to continue to defame a person without suffering more than a slap on the wrist while less well-off defendants may be put out of business altogether.233 This reasoning also applies to a federal false advertising law; a wealthy candidate would pay the fine and continue advertising while a less wealthy candidate would likely pull the advertisement.234 Additionally, the actual malice standard would provide a high enough hurdle for plaintiffs to clear that if they did prevail, substantive damages would be one way of deterring future false advertising.235

[¶42]The actual malice standard is very difficult to satisfy, and it likely deters many politicians from filing defamations suits even if they believe they have been defamed.236 While the difficulty in proving actual malice plays a role in a politician’s decision to file suit, the lack of an appropriate remedy more likely prevents candidates from suing their opponent.237 However, with the evolution and expansion of the Internet, proving actual malice is no longer an impossible mountain to climb.238 A “reckless disregard for the truth” does not mean the same thing in 2008 as it did in 1968.239 In 1968, a politician had very few sources available to him to aid in his research of his opponent; today, everything from how a particular politician voted on a Congressional bill to the details of their platform can be accessed by a few clicks of the mouse.240 While the Internet makes it easier for candidates to recklessly disregard the truth, one question remains: what defines truth?241 Many political advertisements take quotes out of text, misstate voting records, or omit relevant details about their opponent’s actions.242 Which, if any of these actions could be classified as a reckless disregard for the truth? Arguably, all of them may be classified as such.243 While there are existing websites devoted to ascertaining the veracity of politician’s advertisements, speeches, and attacks on opponents, a statute regulating false political advertisements will need to be unambiguous in its definition.244 While the actual malice standard is appropriate for a false political advertisement statute, it must not infringe on the Court’s decision in American Civil Liberties Union v. Reno or the Federal Election Commission campaign rules. The next subpart thus addresses circumstances in which it would.

B. The Actual Malice Standard Can Be Applied to Non-media Defendants Without Violating Reno and Internet Campaign Laws

[¶43]Narrowly interpreted, New York Times Co. prohibits public officials from recovering for defamation against media defendants without proving actual malice.245 A large number of courts have only applied the actual malice standard to media defendants, but many others have held that the actual malice standard applies to both media and non-media defendants.246 While the lower courts seem split as to whether New York Times Co. applies to non-media defendants, the Supreme Court, though never explicitly applying actual malice to non-media defendants, in its decision in Brown, effectively applied the actual malice standard to a non-media defendant.247 Again, Justice White was among the many critics who did not believe the actual malice standard should apply to politicians.248 Due to the damaging nature of a false political attack, some believe that politicians should be allowed to collect monetary damages without proving actual malice.249 The standard of proving defamation is only part of the challenge politicians face, and a more lenient standard alone would not necessarily curb false ads.250 Most notably, the lack of an appropriate remedy that vindicates the official in the public’s eye and attempts to fix the damage caused by the false attack is a key reason politicians do not file defamation suits.251

[¶44]Even if the Court proclaims the actual malice standard to apply to non-media defendants, a law using it must not violate the Court’s decision in Reno, or the provisions of BCRA relating to political advertisements.252 While Reno involved the Court striking down an act of Congress that sought to censor indecent material from children, at its core, it required a proven benefit from a government regulation to outweigh the interest in encouraging freedom of expression.253 While CDA met its demise because it offered neither evidence of the benefit of censoring material nor any efficient and economic way for websites to prevent minors from viewing indecent materials, there is ample evidence that a law deterring politicians from airing false political ads would benefit American citizens.254 Additionally, a statute using the actual malice standard to regulate false political advertisements by candidates and providing a valuable remedy would initially increase the number of defamation suits and thus reverse the negative effects of such ads, while not disturbing the First Amendment jurisprudence specifically shielding the press and protecting the freedom of expression interest illustrated in Reno.255

[¶45]The final potential obstacle in using the actual malice standard to regulate false political advertisements is Section 318 of the BCRA.256 Section 318 requires a candidate to endorse an advertisement as belonging to him; this would have no direct influence on a statute regulating false campaign advertisements, and the two do not need to be reconciled.257 A federal statute requiring actual malice by a politician in creating an advertisement would complement the endorsement requirement of Section 318 and deter even more false advertisements without relying on it to be effective.258 While many opponents of 318 believe it infringes on free speech rights, the Court did not agree, and correctly found that such a requirement was constitutional.259 The FEC’s classification of the Internet as a public communication requires any paid advertisements posted online to include the endorsement required in Section 318.260 A possible loophole, however, includes social networking sites that allow you to post videos for free.261 The key interpretation is whether a person’s YouTube page is considered another person’s website. If it is, then there must be an endorsement.262 If it is not, then no such endorsement is needed.263 With millions of people viewing politicians’ videos, there is the possibility of politicians posting endorsement-less ads, but a federal statute regulating false advertisements would not allow a defamatory advertisement without a politician’s endorsement to escape scrutiny.264 Before discussing the details of proposed statute, this Comment dismisses alternative treatments of false political advertisements.

C. There are No Better Alternatives in Dealing With False Political Ads

[¶46]While there has not been a federal statute adopted to deal with false political advertisements, many states have tackled the matter by creating campaign laws or voluntary campaign codes.265 Most of the state laws use wording similar to the actual malice standard to prohibit publishing false campaign ads, but some use slightly different wording.266 For example the Wisconsin statute provides for a variety of interpretations as to what a false “representation” means.267 While it can be interpreted as less stringent as the actual malice standard, it does not offer the politician any recourse other than the satisfaction of his opponent being charged with a misdemeanor.268 Voluntary campaign codes are not as effective because they do not provide any punishment for politicians who break them.269

[¶47]The most obvious alternative in dealing with false political advertisements is to abandon the actual malice standard altogether270 and provide a different remedy than damages to a defamed politician.271 Advocates of abandoning the actual malice standard suggest treating political advertisements like commercial advertisements.272 Under this theory, an advertisement would be considered false if it probably deceived or misinformed voters.273 The problem with this standard is it does not protect political speech as the Court intended in New York Times Co.274 Commercial speech promotes a product, but political speech is at the essence of what the First Amendment protects, the right to speak out against the government.275 Only by retaining the actual malice standard will political speech get the proper protection it deserves.276

[¶48]In sum, the expansion of the Internet has given new meaning to “reckless disregard for the truth” and made it easier for politicians to prove actual malice.277 Furthermore, using the actual malice standard to regulate false political advertisements, including those on the Internet, would not violate the rulings of the Court in Reno or McConnell.278 Additionally, while many other remedies and standards have been proposed, none protect political speech to the degree the Court requires while providing a public official a meaningful remedy.279

V. Proposal

[¶49]While voter turnout in presidential elections is on the rise, nearly forty percent of eligible voters do not vote.280 False campaign advertising, especially of the negative variety, has been shown to effect voters, and although it is not solely responsible for people staying home on Election Day, it is at least partially to blame.281 The common law regulation of defamation against politicians has protected political speech from being chilled, but has not reduced the number of false advertisements, increased voter turnout, or caused a more issue-oriented campaign.282 This Part proposes to retain the actual malice standard in a federal statute prohibiting false political advertisements. Furthermore, this Part proposes to penalize politicians who violate the statute with monetary damages and to require them to issue a retraction by the same medium and for an equal amount of time as the original false advertisement. Additionally, this Part proposes a requirement that the candidate, and not the government, initiate the lawsuit. Finally, this Part suggests the statute should include an expedited track to federal court to ensure a timely review.

A. Retain the Actual Malice Standard

[¶50]The actual malice standard has been part of free speech jurisprudence for over forty years.283 It safeguards political speech and should continue to do so.284 Yet, it has new meaning with the increasing use of the Internet by politicians.285 No longer does it take Sherlock Holmes-like detective work to discover a politician’s position on an issue or how he voted on a bill.286 Perhaps a “reckless disregard for the truth” could now entail a politician spending only twenty minutes researching his opponent’s views before making allegations about his opponent’s beliefs.287 With the ease of navigating the Internet, the actual malice standard is no longer an insurmountable mountain.288

B. Apply Monetary Damages Only to Candidates and Require a Retraction

[¶51]The Court, in New York Times Co. and its progeny, sought to protect the press from exorbitant monetary damages.289 Allowing politicians to recover large damages against the press could seriously jeopardize the existence of the press as an institution.290 Enacting a statute that limits damages to the creator of the false ad would neutralize this threat.291 The imposition of damages does nothing to halt the damage done by a false ad.292 In addition to damages, it is necessary for a federal statute to require a politician found guilty of airing a false advertisement about his opponent to publish a retraction on the same medium and for equal time as the advertisement ran.293 While this will not completely reverse the damage of a false ad, it will have a two-prong effect.294 First, it will officially vindicate the defamed politician and likely cause voters to, at the very least, reconsider their opinion of the candidate.295 Second, it will impose further damages on the guilty defendant by forcing him to pay for a retraction and deter politicians from airing advertisements that are false.296

C. Make the Candidate Initiate the Lawsuit and Give It Priority to Ensure a Timely Decision

[¶52]Critics of the actual malice standard have proposed the creation of a governmental agency charged with investigating false advertisements.297 The federal statute should remove as many political motivations as possible, and granting power to a government agency would call to question the non-partisan nature the statute is supposed to have.298 Instead, an action under the federal statute should be heard by a district court in the district of the advertisement’s origin within two days of its filing.299 Campaign slander cases present a timeliness challenge that requires them to be decided before the campaign is over.300 A jury trial could be cumbersome and lengthy, but is required by the 7th Amendment to the Constitution.301 To solve the timeliness problem the district court judge should make a preliminary finding of the ad’s veracity, issue a cease and desist order to prevent further political damage, and then instruct the jury during the trial for damages and a possible retraction that his finding should not influence their verdict.302

[¶53]In sum, a federal statute regulating false political advertisements should retain the actual malice standard of New York Times Co., but provide a timely forum for a potentially defamed politician to be heard. By ensuring a timely decision from a district court judge and requiring a candidate found liable under the statute to pay damages and issue a retraction, the propensity for twisting the truth in political advertisements will diminish.

VI. Conclusion

[¶54]The American public has grown weary of political advertisements that manipulate the truth and focus on out of context quotes instead of substantive issues. Politicians continue to use false political ads because they are effective and virtually unregulated. Requiring a politician to endorse his own advertisement no longer deters him from defaming his opponent. While the actual malice standard for defamation of public officials has been a part of free speech jurisprudence for four decades, the lack of a remedy that redeems the victim and deters future assailants has prevented more politicians from filing suit. By providing a remedy that sufficiently punishes the guilty politician while rehabilitating the defamed politician’s image, the protection of political speech will be ensured and the political discourse will escape the gutter.

Footnotes

* J.D. expected May 2010. The author would like to thank his mother, Christine White, and his father, William P. White III, for their love, support, and encouragement.