Legislature(1997 - 1998)
03/31/1998 08:00 AM House STA
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 466 - CAMPAIGN MISCONDUCT: FALSE INFORMATION Number 020 CHAIR JAMES announced the first order of business would be HB 466 "An Act relating to violations of state election laws," sponsored by Representative Hodgins Number 025 REPRESENTATIVE MARK HODGINS explained that the essence of HB 466 is to create a deterrent to some of the "mud slinging campaigns" that have existed in the past. He said it builds on an existing law in that it elevates the offense from a misdemeanor to a felony. He said in speaking with the district attorney (DA) and the prosecutors, they have said they will not expend state dollars to go after a misdemeanor offender, where if it was a felony offense, they would. Number 042 PAT CARTER, Legislative Assistant to Representative Mark Hodgins, Alaska State Legislature, explained the essence of the legislation is to elevate the punishment for knowingly disseminating false and misleading information with reckless disregard for the truth. He noted Mr. Glover has done some investigative work with regards to existing case law. Number 056 RICHARD GLOVER, Attorney, Legislative Legal and Research Services, Legislative Affairs Agency, came before the committee. He explained HB 466 makes a change to the election code, but it specifies a crime which replaces an existing portion of the statutes. It slightly expands the type of conveyances that would be a crime. Mr. Glover pointed out that the existing statute makes it a crime when somebody transmits false information relating to a candidate for an election. The legislation expands that to not only a class B felony, but it also states which types of information would be considered a crime, what dissemination would be a crime. In the old statute, it was simply false information. In the new provision, it would not only be false information, but false and misleading information. Mr. Glover explained one of the difficulties in prosecuting a case like this is proving the falsity of what's disseminated, a question, for instance, is neither true nor false. If somebody asks a question and disseminates information in a form of a question it would never qualify under the old statute as being false. Mr. Glover said, "However, if it is intentionally misleading, the person speaks as a question something that's intended to bring forth a false implication, that would be covered under this new statute." CHAIR JAMES asked if the bill speaks just to candidates and people running for office or does it have anything to with initiatives. MR. GLOVER responded an element of the crime is that the information relates to a candidate for an election. It specifically relates to somebody running for office. Number 103 MR. CARTER explained, "The intent of the bill was to talk about elevating this to a crime of a class B felony." He said in a previous hearing, there was talk about including an initiative or a ballot proposition. Currently, there are existing laws that protect that and it would be a class A misdemeanor. However, in looking into the history and development of criminal dissemination laws, dating back to England and prior to the American Revolution, they had two purposes. It was to prevent public unrest caused by critical statements concerning those in power or to preserve public order by providing criminal sanctions for insults against private persons. It was to prevent a breach of the peace. Mr. Carter said it is not thought that ballot initiatives would cause such a breach of the peace although that may be in question as well. Initially they thought to defame a private man would deserve a severe punishment because it not only incites that person, but it also incites his family and all those people who are in association with him. Mr. Carter read from information he had, "It tends to result in quarrels or a breach of piece and may cause the shedding of blood and great inconvenience." He said against a public person, it is an even greater offense because not only is it defaming the person in question, but it also presents a scandal of government. He said the intention is to raise that level of crime and not necessarily a ballot initiative. REPRESENTATIVE IVAN IVAN asked if the bill would apply to municipal elections. MR. CARTER replied in the affirmative. Number 151 REPRESENTATIVE JOE RYAN asked if the bill would apply to a reporter or publisher of a newspaper who makes unsupported allegations about a person. MR. GLOVER stated it would as the bill speaks to a person who commits the crime. Not only would it be the person who is speaking, or in this case disseminating the information, it would reach perhaps to legal people as well. REPRESENTATIVE RYAN said a year or two ago the United State Supreme Court ruled that anonymous political communication is protected by freedom of speech and they say that the (indisc.) papers. He asked how the legislation will impact that decision. MR. GLOVER pointed out that anonymous speech would be protected. However, there has not ever there has never been a general rule that false speech is protected. He noted a famous case with this regard is The New York Times v. Sullivan case in about 1964. This case elevated the "state of mind requirement" when you're speaking about a public official. A public official has to have, to a certain extent, a thicker skin in the view of the supreme court. The person who is doing the speaking would have to speak knowing that the speech was false, knowing that the statements were false or with reckless disregard for their truth when speaking about a public person. Mr. Glover said, "The case I think that you're speaking about only spoke to whether or not an anonymous speaker be protected and, of course, they would be unless, of course, it was false or spoken with known disregard for the truth." Number 187 REPRESENTATIVE KIM ELTON asked if there would be a different standard for campaign misconduct than there would be liable for somebody that owned a newspaper. MR. GLOVER explained the difference with the legislation is that this is a criminal statute. So all elements of the crime would have to be proven beyond a reasonable doubt, whereas if you sued somebody in civil context for either liable or slander, then all you would have to do would be to establish the facts to a preponderance of the evidence - 51 percent. Mr. Glover stated that there is a slight difference between the types of speech or the remedy that would be pursued. Mr. Glover said, "Of course, typically what you see are people who are plaintiffs or are spoken against will many times pursue their criminal remedy first - bring it to the attention of the DA and let that trial go forward because then the elements of the crime are established to the higher standard to beyond a reasonable doubt. Then once those elements are established beyond a reasonable doubt, then they become established for the later trial. And I think the country saw a good example of that with regard to the O. J. [O. J. Simpson] cases in California (indisc.). Number 212 REPRESENTATIVE ELTON asked if there has to be an element or discussion of reckless disregard for the truth that you would have to have for a liable case. MR. GLOVER explained the reckless disregard and the knowing falsity are subjective elements. You would have to have proof of a subjective element which is very difficult. If, for instance, somebody spoke some speech and then was corrected, "No, what you just said is false," and it was publicly brought to their attention, you would have some introducible evidence. He said, "Now they knew or they were given some information where they could check out what they were saying was false, then you have demonstrable proof that you could bring forth in either a criminal or civil trial -- that when they spoke the second time that it was done with knowing falsity or with reckless disregard. They were given information where they could check out the record that they perhaps were speaking against the candidate and did not. That would be reckless disregard. But the first time, showing that somebody, between their ears, knew that it was false or that they recklessly said, 'Oh, this sounds interesting, I'll put it on the front page of the newspaper.' It is a very difficult element prove, either criminally or civil." REPRESENTATIVE ELTON asked Mr. Glover if he sees a difference between a paid public speech and a non-paid public speech. He referred to somebody who bought an ad in a newspaper and somebody could make a claim that it was misleading information, therefore, it was campaign misconduct involving false information. He asked, "Do you see that a newspaper would be - are they protected if it is paid speech if they're just a vehicle or would they also be culpable." MR. GLOVER informed the committee that the general principle of paid speech is given less First Amendment protections than a political speech, a person's personal speech. As a general principle in the law, commercial speech is generally given less protection. He referred to printing hand bills and putting them on the windshield wipers of parked cars and said that is generally considered to be susceptible to anti-litter statutes. So paid commercial speech is more restrictable and has less First Amendment protection than a person's core political speech. He referred to the ability of the press to publish opinions in its editorial pages and said that may or may not be commercial speech, but a paid advertisement certainly would be. He noted a commercial speech could be when somebody takes out an ad and pays the newspaper for the privilege of publishing. CHAIR JAMES referred to somebody who paid a newspaper to put something in that was false and the newspaper ran the paid advertisement. She asked if they were culpable in any way for being the vehicle that made this available. MR. GLOVER stated, "Under the text of this particular crime - of this particular statute they would be because it says, 'any person who disseminates...' And so if they knew when the paper published that it was false or recklessly disregard that it was false, even though they were paid, they would be liable under this statute." Number 283 REPRESENTATIVE HODGINS said if somebody comes out and says something, they can say anything they want. When they are shown that what they're saying is false and the proof is there, they can no longer say that. The essence of HB 466 is just to clean up some of the rhetoric that is heard regarding campaigns. CHAIR JAMES noted that there is not a fiscal note on the bill. She said that possibly the State Affairs Committee needs to write a zero fiscal note as it doesn't have a fiscal impact. Number 300 REPRESENTATIVE HODGINS made a motion to move HB 466 out of committee with individual recommendations and an attached zero fiscal note. REPRESENTATIVE ELTON objected to the motion. He said he knows that there are times when people have gone overboard in the course of a campaign. He said instead of creating a vehicle in which campaign speech can be controlled, he thinks that the bill could be used as a bludgeon that could be used by some to depress campaign speech. For example, it would be very easy toward the end of a campaign to go to a radio station and say, "That ad you have on is false and because it's false, if you keep running that ad you're going to be subject to a felony, not a misdemeanor any more, but a felony involving campaign misconduct involving false information." He pointed that that puts a radio station, a newspaper or another campaign in a very awkward situation. They can take a risk and they can say, 'Well, you know, we didn't check out the claim, but you know it sounds legitimate.' But they're at risk of a felony if they keep going and if, in fact, somebody in a black robe some time six months down the road says, 'Well, you know it's a close call, but we think you were guilty.' I think that what happens is we're creating a situation to control something that is often times indefensible, but it could be used a club and could be used inappropriately and can actually suppress public (indisc.) of speech." CHAIR JAMES explained that a person couldn't come running in and say, "That's not true." That person would have to have some evidence that it's not true. She said, "In other words, they would have to know when that person left that it was not true and they would not necessarily know because that person told them." Chair James said the type of proof that you would have to have that they know is very important to this issue. Just saying that it's not true won't do it. She said, "They still don't know for sure that it's not true unless they've been given some proof. So even if they go ahead and they don't know one way or the other whether it's true or not, they're not going to be held responsible. This is a pretty high thing. And so I understand your concern, I have no problem putting it on the record, but I don't want to belabor this too long." REPRESENTATIVE ELTON said sometimes it's difficult to prove what isn't true. For example, if somebody buys a radio ad saying that he has been convicted of a DWI [driving while intoxicated] in a different jurisdiction three different times, it might take a week to prove that it isn't true. First, you've got to go to the other jurisdiction and then you ask for court records that aren't there. CHAIR JAMES said if somebody did say that Representative Elton had DWIs in three different locations, they would be putting themselves very much in jeopardy if they didn't know that was true. That is a pretty broad comment about somebody. Number 353 A roll call vote was taken. Representatives Hodgins, Ryan, Ivan and James voted in favor of moving HB 466. Representative Elton voted against moving HB 466. So HB 466 moved out of the House State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|