Legislature(1997 - 1998)

03/31/1998 08:00 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
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.                                              
                                                                               

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