Is lying to voters free speech? Courts say yes
Mistakes or outright lies in a candidate's Voters' Pamphlet statements are nothing new in Oregon.
Past efforts to shore up misleading statements in the Oregon Voters' Pamphlet — mailed out to voters before ballots go out in every election — have failed, Pamplin Media Group's look at the history shows.
Some argue that's a win for free speech. Others say is an ethical failure by the state.
Washington County has seen its own issues with Voters' Pamphlet statements in this year's May primary election. Most notably, Washington County Auditor John Hutzler included quotes in his candidate filing that were attributed to two newspapers owned by Pamplin Media Group, although they actually were taken from a submitted letter to the editor and didn't represent the opinion of the newspapers' editorial board.
"John Hutzler is the clear choice to remain Washington County auditor," says one of the quotes, which Hutzler attributed to the Beaverton Valley Times.
These quotes were both lifted from a letter to the editor written by Aloha resident Eric Squires. They appeared in the cited newspapers on March 3, 2022.
Up for interpretation?
Hutzler told Pamplin Media Group he was just following the instructions for how to attribute a quote, as he understood them.
"As I have said, I regret any misunderstanding that my candidate statement has caused, and I thank you for bringing this issue to the county's attention," he said in an email. "My goal is to improve the county elections process, not to assign fault."
Hutzler's explanation doesn't hold water with several state legislators who represent Washington County in Salem, who responded to Hutzler's misleading attribution of the quotes with a letter to the editor of their own, which Pamplin Media Group newspapers published Thursday, April 21.
"As elected officials and candidates ourselves, we believe in ensuring we meet the letter of election laws, rules, and instructions, and honor the spirit of transparency behind these," stated the letter, which was signed by Sens. Akasha Lawrence Spence, Kate Lieber, Janeen Sollman and Rob Wagner and Reps. Maxine Dexter, Dacia Grayber, Rachel Prusak and Brad Witt.
It concluded: "We also call upon candidates to use the recent example of the Washington County auditor's misleading statements as one not to repeat."
Hutzler's opponent in the race, Kristine Adams-Wannberg, a principal auditor within his own department, also took note of the mischaracterized quotes. She told Pamplin Media Group in an interview that she interpreted the instructions differently.
"What I got out of that was that I need to identify the actual source," she said. "If it was a published source like the media, that I should put down who actually said it. If it was the editorial board of Pamplin Media, then it would be more appropriate to attribute it to a publication."
No other candidates for office in Washington County attributed quotes in their candidate statements the same way Hutzler did, though they were all provided with the same instructions. They all attribute them to individuals, rather than just to the publications where the statements appeared.
While Hutzler's tactics have come under fire, it seems clear that based on courts and state officials' interpretation of the law, the candidate statement is legally above-board.
The Oregon Secretary of State's elections guide states that knowingly making false statements may result in a candidate facing felony charges.
However, an analysis of the statements by the Secretary of State's Office concluded that there was no crime, a spokesperson for the state agency told Pamplin Media Group. Oregon statutes that bar lying in official Voters' Pamphlet statements only apply to the biographical information about the candidate — items like educational and professional background or history of military service.
"Think of (Voters' Pamphlet) statements as advertising," said Jim Moore, associate professor at Pacific University and director of political outreach at the Tom McCall Center for Civic Engagement, in an email to Pamplin Media Group. "There are very few limits on what can be conveyed in advertising. In the political world, it is most often up to the company that sells the ads (the newspaper, tv/radio station, internet provider) to decide if ads are too untruthful to run. There is very little enforceability other than that."
The difference here is that the "company" in this case is the Washington County Elections Division itself, which includes a disclaimer below every candidate statement that reads: "The above information has not been verified for accuracy by the county."
Hutzler told Pamplin Media Group that county elections officials he spoke with shared his interpretation of the instructions for how to attribute a quote.
Washington County's elections supervisor, Mickie Kawai, affirmed this account.
"What he has defined is on the instructions," she said. "He's accurate … it does say to state just the source and the date."
She said she's reached out to the four other counties that review the candidate instructions and they've committed to reviewing these steps this summer.
She said that they could likely change the instructions dealing with quotes to mirror the instructions for listing endorsements, which more specifically requires attribution to an individual, not just the website or publication that their quote appeared in.
There was an effort in 2017 to change the standard for Voters' Pamphlet statements in the Oregon Legislature.
House Bill 2430 sought to expand the truthfulness standard by requiring all parts of a candidate's statement to be true.
But not everyone was on board. The American Civil Liberties Union questioned its constitutionality.
"The American Civil Liberties Union of Oregon has concerns that HB 2430 may be unconstitutionally invalid under the First Amendment," warned ACLU lawyer Kimberly McCullough in a letter submitted to the Legislature as testimony on March 7, 2017.
McCullough cited a U.S. Supreme Court case from 2012, United States v. Alvarez, in reaching her determination.
In that case, a member of a local water district board in California claimed in a public meeting that he received the Congressional Medal of Honor for his service in the U.S. Marine Corps. The claim was proven false, and he was charged under the Stolen Valor Act, a 2005 law that made it illegal to falsely claim military accolades.
However, the U.S. Supreme Court ruled that the law was unconstitutional and violated First Amendment rights. In its plurality opinion, the court ruled that the best way to counter lies is through additional discourse, not by quelling that speech.
"The remedy for speech that is false is speech that is true," the opinion written by then-Associate Justice Anthony Kennedy states. "This is the ordinary course in a free society."
Because of the Alvarez ruling, the law was amended to apply in more specific circumstances, like if someone is actually profiting off of a lie about their military service or honors.
Other federal cases have looked more directly into state statutes that limit political speech, like a 2016 case that looked at Ohio's laws limiting what candidates can say in all of their campaign materials — similar, in principle, to what Oregon lawmakers considered doing in 2017.
Again in the Ohio case, the U.S. Sixth Circuit Court of Appeals ruled that the law was overly broad and that it wasn't tailored specifically enough.
The ACLU argued that those federal decisions effectively limit what restrictions Oregon can place on candidate statements, too.
"Courts have consistently erred on the side of permitting more political speech than less," McCullough wrote in her testimony on HB 2430.
The bill died in committee.
And so, the status quo in Oregon has been to let the course of an election determine whether a candidate's false or misleading statements are called out or not.
"In this context, 'don't lie' laws can only focus on very specific facts," Moore explained. "We tend to focus on education, serving in the military, and simply making things up out of whole cloth. If there are any shades of gray, they are considered free speech and it is up to the political process to root out the truth.
"This rooting generally falls to the opponent of a candidate," Moore added. "If that opponent does not bring the voters' attention to the problem, it ends up not being a problem."
In the case of Hutzler, that's exactly what happened.
Adams-Wannberg, his opponent in the election, quickly called out Hutzler's mischaracterizations on social media.
"So disappointed in our current Washington County auditor, John Hutzler," she posted on her campaign's Facebook page on April 7. "He is supposed to be the county's chief accountability professional, but he misrepresents a resident's letter to the editor in the Washington County Voters' Pamphlet and his campaign website as two media endorsements."
Hutzler is running for his fourth consecutive term as Washington County auditor.
Adams-Wannberg, who has worked in Hutzler's office since 2019, is a former senior financial analyst for the City of Portland and state budget analyst.
The primary election is on May 17. To win, a candidate must receive a majority of the vote; otherwise, a top-two general election will be held in November.
Editor's Note: This story has been updated to reflect new quotes provided in recent interviews with the Washington County Elections Division.
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