False Campaign Speech and the First Amendment

Although campaign reformers may believe otherwise, it is not only the money in campaigns that is problematic. Campaign speech can also threaten the integrity of the electoral process. It can be misleading, manipulative, offensive, defamatory, and, in the case of judicial campaigns, unethical. It can distort the issues, distract the voters from making informed decisions, inhibit voter turnout, and alienate the citizenry. Its effects on the political system can be as corrosive as the worst campaign finance abuses. Currently, a number of legal sanctions are available, at least in theory, to redress excesses in campaign speech. These sanctions include individual defamation and privacy actions for damages and state unfair campaign practice restrictions that directly penalize the dissemination of false and misleading campaign speech. In addition, there are other types of extant or proposed campaign regulations, such as those requiring certain types of disclosure for so-called negative ads, or those requiring the candidate herself to appear on her campaign’s paid advertising, aimed at improving the content of campaign speech. As with campaign finance regulations, however, restrictions on campaign speech raise difficult constitutional issues. Thus far, the Supreme Court’s approach to campaign speech regulation has been erratic at best. Some cases suggest that First Amendment review in this area should be especially stringent. As the Court has stated, the First Amendment has its “fullest and most urgent application [in] campaigns for political office.” Other cases, however, suggest precisely the opposite, i.e., that the role of the First Amendment is less complete in its application to campaign speech restrictions than it is in other areas. Accordingly, the Court has at times