Ask anyone who's spent much time in a hospital, and they'll tell you that sometimes the cure is worse than the disease.
Such is the case with the proposal by state Sen. Wendell Mitchell, D-Luverne, to criminalize "a false statement about a candidate during a political campaign"
if the statement was made "knowing it was false or with reckless disregard of whether it was false." Media lawyers refer to that culpability state as "actual malice," and it's the line that prominent public figures, like politicians, must prove a defendant crossed when they are plaintiffs in a civil defamation case. Mitchell's bill effectively would revive, in a modified form, Alabama's criminal defamation law, which the state Supreme Court struck down in 2001
as a violation of the First Amendment.
One might ask where the harm is in a law that says you can be jailed if you lie about a politician in the heat of a campaign. After all, many recent political races in this state have morphed into nasty competitions to crown the most effective character assassin
, and that trend bodes ill for the quality and decorum of future political discourse. A desire to scrub that dirty, high-dollar slate clean is both understandable and commendable.
But the proposed law doesn't distinguish between entities with a personal or financial stake in the elections and everyday citizens who just have a negative view of a candidate. (Nor is it clear that the bill would be more palatable if it did.) The bill also doesn't list objective standards by which people safely can decide if they're sure enough about the truth of something to tell others about it without fear of jail time due to "reckless disregard" of the truth.
Instead, even if the law ended up rarely being enforced, it would hang the sword of Damocles
, in the form of a possible criminal conviction, over the heads of civically minded Alabamians mulling whether to tell an acquaintance something they heard or read about a candidate. That's not even to mention the potential for misuse of the law to target political or investigative reporters.
Forced to weigh the (for many, relatively minor) pro of talking shop about politics against the (for most, relatively major) con of facing a misdemeanor conviction for saying something that later proves untrue, many citizens may decide the political chat just isn't worth the risk. Down that road lies the erosion, however unintended, of the fundamental right of free speech.
Politicians who feel wronged by inaccurate statements are far from defenseless. For one thing, their fame gives them media access to rebut any harmful falsehoods. For another, the people or groups with the power to do major damage with false statements typically have some money at their disposal, making the threat of a lawsuit an effective check on their actions. Criminal defamation sanctions wouldn't add much more practical deterrent value, but they easily could chill some of the everyday political speech that serves as the bedrock of our republic.
Dirty campaigns are a shameful insult to voters' intelligence, and I long for a utopian world where they are no more. But Mitchell's bill, even if well-meaning, is the wrong path to get to that place. Here's hoping the proposal goes quietly into that good night.