( – promoted by DocHoc)
In less than a month the legislative big show will begin as our elected officials return to the capitol and propose even more regulations for the Sooner State. When they arrive, Senate Bill 7, which proposes to prohibit false advertising in political campaigns and campaign literature will be waiting for passage. Proposed by Rep. Jim Wilson (D) of Tahlequah, the measure would punish evildoers with a $5,000 fine and up to one year in the county slammer–or both–for violations. Now the cynical among us might wonder if there is such a thing as a political advertisement that isn’t false, misleading or an outright lie. Under these guidelines, shouldn’t the next legislative session be little more than a giant conference call from county jails across the state? But on a more serious note, this bill, though well intended, is filled with unintended consequences unless additional changes are made.
To begin with, Oklahoma already has statutes against libel, slander and defamation which are well defined at state and federal levels. Why create additional laws for political figures? Why pass laws affording politicians greater protections against libel than ordinary Sooners?
Along the same lines, an examination of this proposed law reveals that it punishes political libel with greater severity than non political libel. Presently, Oklahoma law provides fines of 1,000 dollars and jail against those who libel; yet, political libelers can face fines of 5,000 dollars and imprisonment. Perhaps it could be argued that a politician has more to lose than the average citizen–but could the same argument be made for non political public figures? Isn’t their reputation at least as valuable as a politicians?
Wilson’s law is of concern for other reasons. The laws of libel, as it pertains to politicians and other public figures, are well traveled legal paths in first amendment law. For a political figure to prove libel requires a heavy burden proof that what was said or done was done so with a knowing falsity, or a reckless disregard for the truth, with malice aforethought. Senate Bill 7 will not change these standards, which have been set by precedent for ages by the Supreme Court and upheld time and again; but, the law may well encourage politicians to sue opponents and ordinary citizens who oppose them, under the guise of libel, with the equivalent of a political SLAPP suit. Simply put, Wilson’s bill is heavily weighted in favor of politicians with NO built-in protections against political abuse. Neither does the bill safeguard robust discussion of political issues for the citizens of Oklahoma.
The proposed legislation chills free speech by extending present libel statutes to that which:
Relates to the personal or political character, voting record or acts of a candidate, or relates to the effect of a ballot measure; and Is designed or intended to elect, injure, promote, or defeat a candidate or to promote or defeat a ballot measure. (SB 7, Section 1.a.2)
Given the nature of the political process, it would be rare indeed if there were a campaign where opponents on both sides didn’t claim that their views, character, record or acts were not intentionally misrepresented. Things are rarely black and white; and many times, falsity is in the eye of the beholder–since all things political, and their perceived consequences are open to interpretation. Wilson’s bill would open a door for lawsuits based upon interpretations of “so called” misrepresentations.
Wilson’s statute also chills free speech of those who would write letters to newspaper editors.
It shall be unlawful for any person to intentionally participate in the preparation, dissemination, or broadcast of paid political advertising, campaign material, or a letter to a newspaper editor that is false…(SB-7, Section 1a)
Of concern here is the statute’s departure from false advertising to letters and opinions written by ordinary citizens who are engaging in their constitutional rights of free speech and political expression. Of course, no citizen should be able to outright lie–even in a letter to the editor–but the issue isn’t as simple as that. Citizens have much less access to political information and legislative processes. What may be construed as an intentional lie may be nothing less than a lack information that cannot be obtained by ordinary citizens. Citizens should not have to fear threats of libel for exercising their rights of free speech–or for participating in the political process.
Finally, this is a law that should be of concern to all political commentators, news reporters, bloggers and analysts who may be subjected to suits from disgruntled politicians during intense times of campaigning. While the law does not specifically mention bloggers, there is no reason to assume they would be exempted from prosecution under these statutes. The courts are still sorting out constitutional protections of bloggers–which are becoming more prominent in political discussions each year. The threat of litigation by politicians towards bloggers who provide harsh political critiques should not be overlooked.
On the positive side, there is one aspect of this law that I believe all Oklahomans should support. Wilson’s law would require that candidates obtain written permission before claiming they have received support from an individual or organization. That provision should do much to inject honesty into the political process. What is missing though is a means or place where these claims can be verified–such as a public website. Without such protections, the law is little more than a paper tiger with politicians claiming that they have permission statements “around here somewhere!”
To summarize, while Wilson’s bill seeks to inject more honesty in the political process, it does so in a way that favors politicians and provides little or no safeguards for the citizens of Oklahoma who are sure to face the wrath of a politicians they oppose. Hopefully this law will be amended if passed at all.