Scholars see it plainly: No clear way to require that political ads are true

10/12/2004

COLUMBUS - It's a question Ohioans frequently have asked this year.

From Swift Boat Veterans for Truth attacking John Kerry's wartime service to apparent forged documents about President Bush's National Guard service, how do you know who is telling the truth and who is lying?

In a battleground state like Ohio, there's no way of escaping.

After one day in Ohio, William Marshall felt the Buckeye pain.

"What you guys are being subjected to; there ought to be battle pay given to every single person in Ohio," said Mr. Marshall, a law professor at the University of North Carolina.

At a forum at Ohio State University yesterday, Mr. Marshall said there are competing arguments on whether there should be federal regulation to stop campaign TV ads that contain "calculated and intentional lies."

The case for regulation includes arguments that truth is critical for a democracy, lies demean political debate, lies generate more lies, voter turnout is suppressed, and qualified people don't want to run for public office, Mr. Marshall said.

The arguments against trying to regulate truth in campaign TV ads include the First Amendment; judges who would be assigned to referee disputes aren't free from partisan bias, and sanctions can be used as a political weapon by clogging the court system with lawsuits, Mr. Marshall said.

"We have no good choices; Both of these arguments in favor of regulation and against are incredibly strong," said Mr. Marshall, who was deputy counsel for President Bill Clinton. "The problem of having judicial involvement is a considerable one in terms of whether we really are going to get objective decisions about whether something is a lie or not."

Saying that voters are confronted with "very sophisticated and powerful campaign consultants who know how to manipulate language," Mr. Marshall said a major question is whether "lies" are the issue.

Mr. Marshall cited the TV ad that Republican U.S. Sen. Jesse Helms of North Carolina used in his successful 1990 campaign against Democrat Harvey Gantt, in which Mr. Gant's voice was slowed down to make him sound "more menacing."

"Even if you regulate lies, are you going to be really able to get rid of the harmful material?" Mr. Marshall said.

Edward B. Foley, an OSU law professor, said a First Amendment principle is that when one campaign lies, the other may respond, and the citizens decide.

But that approach is not working, with campaigns believing the only way to respond to an unfair attack is to launch their own unfair attacks against their opponent, Mr. Foley said.

He suggested that federal candidates could be fined the same amount as the cost of a TV ad that is proved to be intentionally false, with the victim candidate being able to spend that money; attack ads from a candidate or a third-party group would eliminate any caps on spending by the opponent, and nonprofit groups that do "fact checks " on TV ads also should give candidates a "truth'' rating.

Mr. Marshall said he didn't see grounds to regulate a documentary Sinclair Broadcasting Group is ordering its stations to air days before the election. It attacks Mr. Kerry's anti-Vietnam War protests three decades ago.

"If it's not false, the notion of regulating it becomes extremely problematic," said Mr. Foley. "There are some rules about TV ownership and media concentration, and it's possible they could come into play."

Mr. Marshall said the end of the "Fairness Doctrine," requiring balance in presentation of controversial issues, sent a message to broadcast licensees that they need not be objective.

"Some of the networks are learning that the more partisan they are, the more it increases their viewership," he said.

Contact James Drew at:

jdrew@theblade.com

or 614-221-0496.