Published: January 12, 2011
What would you say if I told you that someone is arguing proudly that deceptive speech, speech specifically designed to mislead voters and keep people away from the polls on Election Day, is protected by the First Amendment?
Couched in those terms, it almost doesn’t seem that bad anymore, does it? After all, politicians spouting lies are so universally accepted, Jay Leno makes a living joking about it five nights a week, right?
Julius Henson, the man who hired a company to send out more than a hundred thousand deceptive robocalls on the night of last November’s election, is arguing in federal court that dirty tricks like his are politically protected speech. Longtime readers of City Paper will be familiar with this kind of attitude from Henson. In a July 2002 profile of Henson titled “Baltimore’s New Caesar,” James Michael Brodie detailed Henson’s classic bareknuckle campaign tactics, all involving speech that dances on the borderline of ethical behavior, including illegal placement of campaign signs on public property and distributing to the media salacious details of an opponent’s personal life. Henson also hired mobs of men to shout down political opponents at campaign rallies.
So what’s a hundred thousand phone calls to an opponent’s base hinting that they should “relax” and watch the returns on television, right? (You’ll note that the wording of the phone calls specifically avoided using the words, “stay home,” which shows that if anything Henson has learned a modicum of subtlety since 2002.)
Henson’s lawyer, in a court filing challenging a civil suit brought by Maryland Attorney General Douglas Gansler, argues that
[t]he so-called “dirty tricks” of politics have been well-known to the body politic of the United States of America . . . Not only discrediting tactics, but voter psychological manipulations have been allowed in the media since the early 1960s to the present day. While the practices are certainly of questionable ethical techniques, they nevertheless provide for robust debate and decisions to be made by the electorate, who as citizens are responsible for their individual vote . . . Government should not regulate political messages for truthfulness.
Unfortunately, this time Henson may have been too clever by half. You see, just as you can’t shout “fire” in a crowded theater, the right to free speech is not absolute, and there can be (and are) regulations placed on various kinds of speech. If Henson had lied to you trying to sell you a car, he could be prosecuted for fraud or violations of consumer protection laws. Since he works in the realm of political speech, where the standards are lower, he likely figured he could get off scot-free. After all, as the saying goes, the only antidote to bad speech is more speech, right?
What could have saved him is counterintuitive to a good political dirty trickster: The law he is accused of violating says nothing about the content of the speech, only that the campaign producing it be clearly identified. In other words, he could have gotten away with it if he had only signed his work (which, of course, would have negated the purpose of the call). That small distinction could end up costing Henson as much as $168 million, given that the penalty for each individual call is $500, and Gansler is asking the courts to triple it.
Political speech is about to get a lot more scrutiny in the coming weeks after the shooting of Democratic Rep. Gabrielle Giffords (Ariz.) Saturday in Arizona. Not because of the shooter, who is looking more like an unstable individual with a too-easily purchased gun and a nutcase agenda, but because of the current climate of political speech.
Certain broadcast outlets have been pumping out thousands and thousands of hours of toxic speech since Barack Obama was elected. When people like Ann Coulter can go on the air and joke about killing Supreme Court justices and the entire staff of The New York Times and not only be invited back, but make a career doing so, it tells you something. Multiply examples of eliminationist rhetoric like Coulter’s by the thousands and you can see what kind of effect this might have on the unstable and the intolerant. Soak something long enough in poison and it becomes pretty toxic itself.
The only thing that can stop cynical manipulators like Henson is when political candidates refuse to tolerate their actions. The only thing that can cut down on the hateful eliminationist speech coming from our media is a clientele—viewers, listeners, and advertisers—who refuse to sanction it anymore. Anything else is giving assent to poisonous speech.
In an honest society, hiring someone to lie to get you elected is not OK. In a civil society, hinting on the radio or TV about how great the world would be without the people who disagree with you is not OK. The problem with metaphorically asking, “Who will rid me of this meddlesome priest?” every day is that, eventually, someone will provide you with an answer.
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