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Judges and Judiciary,

Sep. 17, 2018

Defamation on the campaign trail? Not in California

A little-known California constitutional provision allows courts to overturn election results due to defamation if the losing candidate can prove that defamatory speech swayed voters enough to affect the results.


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A voter at Township Elementary School at Simi Valley, June 5, 2018. A little-known California constitutional provision allows courts to overturn election results due to defamation if the losing candidate can prove that defamatory speech swayed voters enough to affect the results. (New York Times)

Can political candidates really say whatever they want about an opponent to sway an election and keep their seat if they win?

A little-known California constitutional provision says "no" -- allowing courts to overturn election results due to defamation if the losing candidate can prove that defamatory speech swayed voters enough to affect the results. However, the law has never been tested. Does this provision have teeth? With the increasingly hostile political climate, we may soon know. Perhaps more states will adopt similar laws to keep candidates honest in the current digital age where the spread of disinformation is seemingly unstoppable.

In 1984, California adopted a constitutional amendment designed to deter defamatory campaign speech with a single extraordinary remedy: removal from office. Article 7, Section 10(a) of the California Constitution provides, "No person ... shall retain the seat to which he or she is elected, where it is established that the libel or slander was a major contributing cause in the defeat of an opposing candidate." Simply, a court must remove a candidate whose lies about an opponent were proven to be a determining factor in the results of the election.

In order to establish a case that requires judicial removal of a winning candidate, the losing candidate must prove:

Causation: To succeed, the defamed candidate must prove that the successful candidate knowingly made a false statement of fact that was "a major contributing cause" in their defeat. At trial, the jury must make a separate, distinct finding on the issue of causation. Essentially, the lie must have been a deciding factor that misled citizens to cast their vote for the opposing candidate -- and the burden is on the plaintiff (the losing candidate) to prove this. Presumably, polling data would be particularly persuasive to prove that the defamatory statement affected public opinion and the decisions voters made at the ballot box.

Known Falsity or Reckless Disregard for the Truth: The winning candidate must have known the statement was false or have acted with reckless disregard for the truth (i.e., highly aware of its probable falsity or entertaining serious doubts about its truth). The false statement itself may have come directly from the winning candidate, or it may be constructively assented to, authorized, or ratified by the candidate.

If those elements are proven, the court must remove the winning candidate from office and fill the vacancy in the manner provided by law for any vacancy in that office.

Don't current defamation laws address this issue?

Some may think traditional defamation laws are sufficient to address campaign defamation. However, defamation law attempts to compensate those who are defamed for damage to their reputation -- it does nothing to address affected third parties. In the context of campaigns, the public is the true victim of false speech that sways the outcome of an election. Thus, without more, traditional defamation law provides no remedy for voters who have been hoodwinked in the course of a campaign.

Misleading campaign speech is nothing new. Mudslinging is par for the course in American politics, and with each new election cycle comes a fresh batch of attack ads between political rivals. However, modern technology has made society particularly susceptible to the potentially devastating effects of defamatory campaign speech on the electoral process. Today's media-saturated political climate, combined with an intense partisan divide, presents a uniquely modern twist to the age-old campaign practice of uninhibited attacks on opponents.

The internet has transformed the way society sends, receives and digests information, which, in turn, has transformed the ways campaigns operate. Social media and online "news" outlets often act as echo chambers that allow lies to thrive and, ultimately, sway the opinion of voters (who have an understandably difficult time distinguishing falsehoods published on online platforms from actual news). Social media and digital channels spread information -- and disinformation -- at rates previously thought impossible. The effects of this presents new, and distinct, problems to candidates trying to run honest campaigns and new opportunities to unscrupulous candidates looking for a win, even at the expense of truth.

That leaves the question of whether judges will be willing to overturn elections. Though this law has gone untested in California, Oregon has a similar statute (Oregon Revised Statute Section 260.532(8)), which has been tested on multiple occasions with some limited success. Oregon courts tend to apply a very strict reading of the statute. For example, if the statement can be interpreted as a mere criticism, opinion or comment, it falls outside the scope of defamation and will probably receive First Amendment protection. This, coupled with the innately difficult-to-prove actual malice standard, creates hurdles for plaintiffs to overcome. Overall, courts are rightfully reluctant to overturn an election out of fear that doing so disenfranchises voters. But, that does not mean that courts will not do so in an appropriate case. To be sure, courts have been called on to decide the validity and outcome of elections in many contexts and there is no reason to think they are not equipped to do so when a politician has won by intentionally lying about an opponent.

Of course, the question of such a law's constitutionality cannot be ignored. Generally, false statements of fact receive no First Amendment protection, since they do not further the marketplace of ideas -- the very function the First Amendment was designed to promote. On the other hand, it is well-settled law that political speech receives the highest level of First Amendment protection. Thus, false political speech pits these two principles directly against one another.

The U.S. Supreme Court's 2012 decision in United States v. Alvarez provides useful insight to this dilemma. Alvarez rejected the idea that false speech is categorically exempted from First Amendment protection, but its actual holding is much narrower. Alvarez suggests that false speech may receive First Amendment protection if the speech is non-defamatory and no harm results from the lies. As such, Alvarez is easily distinguishable from the campaign defamation context. In fact, Alvarez admits that, "Where false claims are made to effect a fraud ... the Government may restrict speech without affronting the First Amendment." Moreover, the government's interest in restricting false campaign speech -- maintaining the integrity of the democratic process -- is, perhaps, one of the most compelling interests the government may invoke.

To some, the very notion that a court has the power to overturn an election seems like extraordinary authority that violates the separation of powers, rendering the provision unconstitutional. However, maintaining integrity in the democratic system has always been central to the judiciary's role in America's system of checks and balances -- and this is true now more than ever with the rate at which disinformation spreads in the digital age.

The judiciary's hesitation to invalidate an election is certainly understandable. However, if left unchecked, deceitful campaign tactics that rely on defamatory speech are likely to get worse -- with duped voters being the ultimate victims. Lies spread through social media platforms like wildfire, oftentimes in a format that's difficult for the everyday voter to distinguish from factual news. Defamation laws as they stand are ill-equipped to deter unethical candidates from engaging in this tempting -- and often effective -- path to victory.

In an age where truth itself is under attack, voters deserve election laws that protect them from the toxic effects of defamation on the democratic process. When a citizen casts a vote for a candidate based largely on lies she was made to believe, does that candidate actually represent the voter? By intentionally deceiving voters, a candidate directly undermines the representative principles on which our democracy was built.

Because of this, states might consider adopting laws similar to California's constitutional provision in order to maintain integrity in the electoral process. When the political branches of government fail to maintain ethical standards of conduct, it is usually the duty of the judiciary to provide an equitable remedy. Adopting law similar to California's give courts the power to meet that duty.


Ben Armistead

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