Posted by Eugene Volokh:
Law Requiring Candidates "To Obtain and Recite, In Any ... Advertisements, the
Explicit Authorization Received from an Endorser" Struck Down
http://volokh.com/archives/archive_2008_10_19-2008_10_25.shtml#1224973252
by the [1]Maine Supreme Court. Some key language:
The restriction on speech embodied in section 1014-A is not,
however, limited in application to fraudulent or libelous
statements made in the context of an election. Instead, section
1014-A sweeps broadly enough to prohibit the use of an endorsement
that was actually made.
The fact that the unauthorized use of an endorsement is not
necessarily fraudulent is amply illustrated in this case. Mowles�s
use of the 2004 general election endorsements of Senators Snowe and
Collins in his 2006 primary campaign was, as the Commission found,
unauthorized. Mowles�s flyer, however, did not misrepresent the
truth because it included, albeit in smaller type, the fact that
the endorsements dated back to October 2004.
Today�s society is no stranger to advertising that relies on fine
print and other less-than-prominent disclaimers to stay within the
bounds of the truth. Although the fairness of these approaches can
be questioned, they are generally not, without more, fraudulent.
With respect to political endorsements, there are myriad
circumstances in which a candidate might publish an endorsement
without the express authorization of the endorser and not commit a
fraud on the public. In any event, at no point in this proceeding
has the State asserted that Mowles�s use of the endorsements of
Senators Snowe and Collins was fraudulent.
Free speech is accorded great value in our society. Although the
State need not �sit idly by and allow [its] citizens to be
defrauded,� �it cannot seek to punish fraud indirectly by
indiscriminately outlawing a category of speech, based on its
content, with no necessary relationship to the danger sought to be
prevented.� Because section 1014-A captures far more speech within
its grasp than it can legitimately hold as a fraud-preventing
measure, it cannot be sustained by the State�s special interest in
preventing false statements in an election where time does not
allow for such statements to be counterbalanced by the truth. Thus,
even if the State�s concern regarding fraud were supported by any
fact in this record, the statute is not narrowly tailored to
address that interest.
References
1.
http://www.courts.state.me.us/court_info/opinions/2008%20documents/08me160mo.pdf
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