Court Upholds Ban on Campaign Falsehoods in Voters’ Pamphlets

In a lawsuit filed by Orange County Sheriff Brad Gates, the 4th District Court of Appeal Thursday upheld a state law requiring deletion of false statements by candidates in pamphlets mailed to registered voters.

But a section of the law requiring deletion of “misleading” statements by candidates for nonpartisan office was struck down. The court ruled that section too vague and in violation of constitutional free speech rights.

The 2-1 decision was the first ruling by an appellate court in California on the constitutionality of the statute, according to lawyers handling the case. Justice Thomas F. Crosby Jr. filed a stinging dissent, calling the ruling “undiluted constitutional poison.”

Presiding Justice John K. Trotter Jr., writing the majority opinion, said the issues were “of constitutional magnitude and great importance.”

State’s Interest

“Permitting publication of falsehoods in the pamphlet would, by definition, defeat the state’s interest in promoting a rational and informed electorate,” Trotter wrote.

Trotter, joined by Justice Robert E. Rickles, found that the restriction on false statements “protects the electorate at relatively minimal First Amendment cost.” But the vague prohibition on misleading statements “exacts a much greater price for little, if any, additional benefit to the electorate.”

In a 20-page dissent, Crosby called the entire statute “state censorship” that should be “eradicated before its virus can spread to other vulnerable hosts whose speech the government might desire to stifle or abate.”

Gates filed the lawsuit against Linda Calligan, an unsuccessful challenger in the June 3 election, claiming that she had made false assertions about him in her campaign statement.

When a Superior Court judge found in Gates’ favor and ordered the statements deleted from the county-subsidized mailing, Calligan appealed, claiming the statute was unconstitutional.

‘Victory for the Voters’

“I think voters should be very pleased, as we are, that candidates are not allowed to disseminate false information,” said John R. DiCaro, the lawyer representing Gates in the case. “It was a victory for the voters.”

William Yacobozzi Jr., representing Calligan, said he will appeal.

“This decision allows a prior restraint on free speech, one of the most important rights in this country, particularly in the context of elections,” Yacobozzi said. “We were successful in part of the constitutional argument, and we fully expect to prevail on the balance when we appeal to the supreme court.”

Among the statements at issue in the case were Calligan’s claim that Gates was “convicted of a federal crime and fined $100,000, which taxpayers paid.”

Trotter found that claim, as well as three others upon which Gates based his lawsuit, to be false. Calligan’s statement referred to a finding by a federal judge last year that Gates and other county officials had failed to reduce crowding in Orange County Jail as previously ordered.

After the state Supreme Court intervened, an order deleting the statements that had been issued by Orange County Superior Court Judge Judith M. Ryan was allowed to stand. The voter pamphlets printed by the county did not contain the statements.

Finding Proper Balance

Trotter wrote that the issue of falsity involved finding “the proper balance between a candidate’s right to deceive and the state’s interest in protecting the integrity of the electoral process.”

The statute contains “adequate procedural safeguards” for free speech by allowing statements to be altered only by court order after falsity has been show by “clear and convincing proof,” Trotter ruled.

Crosby, dissenting, wrote that the majority opinion “finds no precedent in 200 years of U.S. Supreme Court jurisprudence.”

The statute provides for state censorship, and the majority opinion is “essentially unprecedented, constitutionally intolerable and borders on the Orwellian,” Crosby wrote. “The remedy for the political lie is to turn it against the opponent on the stump and in the press. And ‘truth’ is for the electorate, not the state, to determine.”