Article by Lee Goldman
Much of campaign advertising is false. As a result, voters are misled, the discourse of debate is lowered, the electorate disbelieves campaign advertising even if truthful, and the public loses respect for politics and politicians. If voters are misled, elections may not accurately reflect the desires of the electorate. If the public cannot trust campaign advertising, candidates become indistinguishable and politicians who are elected are not fully accountable for the decisions they make. To the extent the lowered discourse of debate, voter distrust, and disrespect for politicians reduces turnout, elections do not represent the will of the majority. In short, false advertising undermines the integrity of the election process and the representative democracy upon which our Constitution is based. Legal remedies are insufficient because courts require a complaining party to demonstrate actual malice, an exceedingly difficult standard to meet. This Article maintains that the actual malice standard is neither constitutionally mandated nor appropriate. Rather, it suggests a statutory scheme regulating materially false campaign advertising that is negligently made.
About the Author
Lee Goldman. Professor of Law, University of Detroit Mercy School of Law. B.A. 1976, Queens College; J.D. 1979, Stanford University.
Citation
82 Tul. L. Rev. 889 (2008)