Free Speech and the Right to Lie

April 2007
House Minority Leader Mike May says that he is uncomfortable with efforts to have an ethics commission investigate a lobbyist. As the Rocky Mountain News reports:
Rep. Mike May, R-Parker, said he is worried that two separate complaints filed this year against lobbyists threatens their livelihoods and sends the wrong message. He said he now regrets his vote two weeks ago to investigate a lobbyist. And he said he doesn't want to be involved in today's decision, although the complaint is from his own party... ...In a letter to House Republicans, May said he believes the legislature is "set upon a new course." "Regulating speech, in fact effectively criminalizing speech, by a majority party is a dangerous path for our state," he wrote... ...May is one of six members of the Executive Committee, which is comprised of the minority and majority leaders in the House and Senate, and the House speaker and Senate president. Democrats hold a 4-2 majority. The complaint the committee will review today was filed Tuesday by Rep. Kent Lambert, R-Colorado Springs, against Lynne Garramone Mason, the lobbyist for the Colorado Education Association. He said she was deceptive in an e-mail sent to drum up support for Democratic Gov. Bill Ritter's plan to stabilize property taxes to raise more money for schools. Nearly every Republican opposes to the plan. Critics say the complaint is baseless, and was filed only because a Democratic lawmaker earlier filed a complaint against a lobbyist often aligned with Republican interests. In that case, leadership unanimously voted to empanel a committee to review a complaint against William Mutch, which was filed by Rep. Alice Borodkin, D-Denver. Mutch is executive director of Colorado Concern, a high-powered business group that was trying to defeat a homebuyers' protection bill. The group was involved in hiring a firm to make phone calls to voters to get them riled up about the bill. Democratic lawmakers' whose constituents received those calls said they were deceptive. Mutch told the Rocky Mountain News that his group was not involved, but e-mails between Mutch and the firm dispute that. "William was stupid to lie to (the Rocky) but that's not a crime," May said.
If lying to a newspaper reporter was a crime, we'd have to build a lot of new prisons, and May is correct that Match shouldn't be held accountable for that. But that's just a tiny piece of the bigger issue here, which involves whether a lobbyist should have the right to lie to the public, in the form of robocalls, in order to influence votes in the legislature. There's little disputing of the fact that Mutch was involved in creating a robocall campaign that spread misinformation to voters, as Mutch himself indicated in a response filed to the ethics complaint:
A lobbyist accused in an ethics complaint of orchestrating deceptive phones ads in order to torpedo a home buyers protection bill filed a 200-page response Friday. William Mutch says his free-speech rights protect him from punishment. "Mr. Mutch contends, that even assuming he engaged in 'deceit,' the (ethics) complaint infringes on his First Amendment rights and must be dismissed," Mutch's attorney, Jeffrey Springer said in a letter to the legislature Friday. The letter was in response to complaints filed by two Democratic lawmakers targeted by the "robo-calls" to voters in their districts. Mutch insisted the March campaign was "not deceitful or false," and initially denied any role in the robo-calls placed largely to seniors. The calls warned recipients that their lawmaker supported a bill that would boost their property taxes and expose them to huge lawsuits. But a Rocky Mountain News examination of e-mails showed Mutch's involvement in the ad blitz. In one, he asked, "Do you think the script is hard hitting enough - or do we need to add things like this bill could make it tougher to sell your home or increase your liability when you sell your home . . . ?" Mutch, the director of Colorado Concern, has been placed on leave.
In other words, Mutch likely directed a robocall campaign aimed at scaring voters into thinking that the legislature was going to pass a bill that would cause them great harm. The phone calls contained information that had little or nothing to do with the actual bill they were intended to influence; there's nothing wrong with telling voters to call their legislators because a certain bill is bad, but should you be allowed to scare voters with potential consequences that are patently false? Mutch is claiming that his right to free speech lets him, in essence, say whatever he wants. But not all free speech is truly free. It's not legal, for example, to yell "fire!" in a crowded movie theater in order to incite a panic. "Free speech" also does not allow you to tell a security screener at the airport that you have a bomb in your suitcase if you really don't. It's an interesting argument to say that your free speech rights should allow you to be consciously inaccurate when reaching out to voters for the purpose of lobbying, but I don't agree with Mutch or May on this issue. You can still be an effective lobbyist, and you can certainly still stretch the truth without using out-and-out lies. If you're going to say that these robocalls were okay, then where do you draw the line? What if you created a robocall that said this: If your legislator votes for this bill, your home will be repossessed and someone will come and shoot your dog. Would that be okay? There's a reason why we have laws prohibiting false advertising, and there's a reason why we have lies prohibiting candidates from making knowingly false statements about their opponents. There's no reason an ethics commission shouldn't be allowed to impose restrictions on lies coming from a lobbyist.