Distorting Democracy: Campaign Lies in the 21st Century

By Ashdown, Gerald G. | The William and Mary Bill of Rights Journal, May 2012 | Go to article overview

Distorting Democracy: Campaign Lies in the 21st Century


Ashdown, Gerald G., The William and Mary Bill of Rights Journal


INTRODUCTION

By now, nearly everyone in the legal community has heard of Caperton v. A, T. Massey Coal Co., Inc.,1 a case in which the United States Supreme Court held that a state supreme court justice should have recused himself as a matter of due process.2 At the state level, Caperton involved an appeal of a $50 million judgment against a company whose chief executive officer (CEO) had contributed $3 million dollars to the justice's election campaign.3 What most are not aware of, however, is the lies and distortions directed at the justice's incumbent opponent in order to defeat his rélection. Don Blankenship, Massey's CEO at the time, was the primary investor in a political organization formed under § 527 of the Internal Revenue Code4 named "And For The Sake Of The Kids."5 The organization was instrumental in the 2004 campaign for Justice Warren McGraw's seat on the West Virginia Supreme Court of Appeals, the highest court in the state.6 The group made many inflammatory claims in advertisements, including the claim that Justice McGraw let "child rapists" go free.7 This claim stemmed from the 2004 per curiam decision in State v. Arbaugh* The Arbaugh case was far from letting a rapist go free. Mr. Arbaugh himself was the victim of long, systematic sexual abuse at the hands of two adult family members and one of his teachers.9 As a result, he acted out sexually against his younger halfbrother, and a delinquency petition was filed when he was fifteen years old.10 He was transferred to adult court and pled guilty to one count of first-degree sexual assault.11 The Arbaugh case in question arose a few years later, when the West Virginia Supreme Court of Appeals ruled that the trial court had abused its discretion in not reducing Mr. Arbaugh's sentence to probation so he could pursue a private rehabilitation program.12 More problematic regarding the truth of the political ad was the fact that Mr. Arbaugh had been previously placed on probation, although it had been revoked at the time of his petition.13

Blankenship admitted that his real objections to Justice McGraw were his rulings against corporate defendants.14

"Being the street fighter that I am," he said, he had instructed his aides to find a decision that would enrage the public. When they returned with an unsigned opinion in the sex abuse case, which Justice McGraw had joined, [he] said he knew he had hit pay dirt. "That killed him," [he] said of Justice McGraw, smiling.15

This case is an example of the abuse of money in politics; but more particularly, it represents the evils of lying in political campaigns, which can have a very distorting effect on election outcomes. Unfortunately, it seems to be that because of the New York Times Co. v. Sullivan16 line of cases, requiring proof of actual malice in the form of knowledge of falsity or reckless disregard for the truth,17 there is virtually no remedy for this kind of deliberate deception. Perhaps legally this should not be so. I have argued elsewhere for the use of a negligence standard, at least in the case of media defendants.18 But even if this is not possible in the political arena because of core First Amendment values, there is still room for New York Times liability. In the Blankenship campaign against Justice McGraw, for example, Blankenship was certainly malicious in the subjective, emotional sense of the term. It also can be argued on a number of fronts that he was malicious in terms of New York Times actual malice. First, Mr. Arbaugh was himself a juvenile at the time of his offense, and thus was not an adult "child rapist."19 Second, he had already been placed on probation by the trial court, but it had been revoked because of the consumption of drugs and alcohol at the time of his petition.20 Third, Mr. Arbaugh did not exactly "go free"; he was placed on tightly controlled supervision.21 And fourth, Justice McGraw did not independently grant him relief; the justice was simply part of an unsigned three-judge ruling. …

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