State system for condemning certain tactics of political candidat es struck down

Volokh, Eugene VOLOKH at mail.law.ucla.edu
Fri Mar 30 17:53:01 PST 2001


        Ancheta v. Watada, 2001 WL 262641 (D. Haw. Jan. 30), struck down a
state system for condemning certain tactics of political candidates, even
though there was no tangible penalty imposed through the system.

        The Hawaii Campaign Spending Commission, pursuant to state law,
enacted a Code of Fair Campaign Practices.  Candidates need not sign the
Code, but if they don't, then their names are posted on the Commission's Web
site; and if they sign the Code but fail to abide by it, the Commission then
censures them, but apparently does not impose any other tangible penalty.
The Code bars, among other things, "misrepresent[ing], distort[ing], or
otherwise falsif[ying] the facts regarding [another] candidate," "personal
vilification [and] character defamation," and appeals to prejudice based on,
among other things, a candidate's race and sexual corientation.

        The district court struck this down, on the grounds that it covered
speech other than false statements of fact said with actual malice, but
didn't fully confront the question whether a system that only provides for
censure -- i.e., for government speech condemning a person's actions --
should be treated differently from a system that provides for damages
awards, fines, or jail time.

        Any thoughts on this?

        Eugene
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