Senator Al Franken – friend or foe of broadcast freedom?

It now looks as though Al Franken, former Saturday Night Live funnyman and Air America talker, will be the next Senator from Minnesota. Many First Amendment advocates and opponents of the so-called "fairness doctrine" in talk radio are welcoming Franken’s arrival in the Senate.

Franken has made it plain that he opposes revival of what is more accurately termed the Censorship Doctrine, and as a former talk show host he could be expected to seen as a valuable and knowledgeable expert on why putting government bureaucrats in charge of political talk radio would be a bad idea.

David Fredoso of National Review Online welcomes Franken with the following:

House and Senate Republicans who are fighting reinstatement of the Fairness Doctrine hope to enlist the support of Al Franken (D.) should he become the next junior senator from Minnesota. "If he comes in, I’m sure we’d get him on board right away," Sen. Jim DeMint (R., S.C.) told NRO today…

…Republicans hope that Franken, formerly a broadcaster for Air America and currently in litigation over his victory in November, will join their cause. A Franken spokesman confirms that he opposes reinstatement of the Fairness doctrine – his radio show could not have existed in a world where the Fairness Doctrine was in effect…

Franken’s position as an outspoken progressive who recognizes the threat to free and unfettered political speech that the Censorship Doctrine represents will undoubtedly be welcome in the coming debate over the effort to stifle dissent on the airwaves, given that the push to bring back the Censorship Doctrine is largely coming from the left.

But before Franken is welcomed with open arms into the debate over government censorship in radio, he has what another funnyman might have described as "some ‘splainin’ to" do regarding his comments about regulating political talk over the air.

Howard Fineman of Newsweek reported in 2007 that Franken told him that "You shouldn’t be able to lie on the air. You can’t utter obscenities in a broadcast, so why should you be able to lie? You should be fined for lying."

And what, one wonders, might Al Franken consider to be "lying," or put another way, what sort of statements does the probably Senator from Minnesota think the government should punish people for uttering?

We don’t have to guess, it turns out. A little sleuthing turns up exactly what sort of statement Al Franken, or at the very least the people around him and who work with him on political matters, thinks is worth sending in the political speech police for.

Minnesota is one of the unfortunate states that has a law on the book that prohibits "false" advertising in campaigns that, as their statute describes, is "…designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office or to promote or defeat a ballot question." It is a gross misdemeanor in Minnesota to "…intentionally participate[] in the preparation, dissemination, or broadcast of paid political advertising or campaign material…" Gross misdemeanors in Minnesota carry a jail term of up to 1 year.

The opportunities for abuse of such a law are obvious. Some of the things candidates and others engaged in issue advocacy say might be considered clearly false – inflating academic credentials, for example, or accusing someone of having a criminal record when they don’t would likely qualify.

But, as we’ve seen in Wisconsin, which has a similar law (maximum 6 months in jail), these laws are ideally suited for those who want to silence their critics or exact revenge after a hard-fought election. And the Democratic Farmer-Labor Party of Minnesota, almost certainly in coordination and consultation with the Franken campaign, added yet another chapter in how "false political statements" laws are abused.

From the DFL’s web site:

The Minnesota DFL Party today filed formal complaints with the Minnesota Office of Administrative Hearings against the groups Coalition for a Democratic Workplace and Minnesotans for Employee Freedom. The Party alleges that the television and print advertisements that the groups have run – and, in the case of the Coalition for a Democratic Workplace, continue to run – on behalf of Senator Norm Coleman violate the Minnesota election law, which prohibits "false political and campaign material" and provides for criminal and civil penalties…

State DFL Chair Brian Melendez released this statement:

"Two front groups have been spreading false statements about the Employee Free Choice Act – lies that Senator Norm Coleman has gladly repeated on many occasions, even after labor leaders met with him and explained that the statements were untruthful and that the Act in fact guarantees a secret ballot. Senator Coleman… has resorted to telling lies about his opponent, Al Franken.

"But in Minnesota, we don’t tolerate intentionally false statements in paid political advertising; in fact, such statements are a crime, and rightly so. We are therefore holding legally accountable the two groups that have knowingly and intentionally spread these false statements in Minnesota. A judge will hold those groups accountable. And Minnesota voters will hold Norm Coleman accountable."

 The statement goes on to provide evidence to support the DFL’s contention that the Employee Free Choice Act (EFCA) doesn’t, in fact, eliminate secret ballots.

The problem, of course, is that whether or not EFCA eliminates secret ballots in union organizing campaigns is a hotly contested point. As a matter of law, in fact, EFCA does not remove secret ballot elections from labor law. Opponents of EFCA counter that the practical effect of EFCA will be to eliminate secret ballot elections.

At worst, opponents of EFCA may be accused of modestly careless use of language in describing it as the "elimination" of secret ballots, which is certainly technically incorrect but possibly true in practice. For this, the DFL, with the presumable support of the Franken campaign, wanted citizens thrown in jail?

Thankfully, the administrative law judge in Minnesota who heard the complaint had far greater respect for the First Amendment and recognized that what is true and what is false in political and policy debates is a matter of intense and often hyperbolic dispute. From the law firm of Wiley Rein (who represented the two groups accused of "lying" in their ads):

On August 18, 2008, a Minnesota administrative law judge (ALJ) dismissed complaints brought against the Coalition for a Democratic Workplace and Employee Freedom Action Committee and its Minnesota affiliate, Minnesotans for the Employee Freedom, under the state’s false political statements act. According to the ALJ, the complaints brought by the head of the Minnesota Democratic-Farmer-Labor Party did not show that a violation of the law had occurred.

… The complaints in this action alleged that the following constituted false statements: television and newspaper advertisements indicating that Al Franken, a candidate for the U.S. Senate, wants to eliminate the secret ballot for workers by supporting the proposed Employee Free Choice Act, which would allow unions to organize simply by presenting a majority of publicly-signed union cards rather than requiring a secret ballot…

The ALJ rejected the complaints’ central argument, noting that the state’s statute is directed only at false statements of fact, not criticism of candidates or unfavorable deductions based on a candidate’s conduct or voting record. Numerous press articles and opinion pieces drew the same conclusion regarding the implications of the Employee Free Choice Act and, therefore, according to the ALJ, ads voicing the same opinions could not be considered false statements of fact…

It may, in fact, be unfair to Al Franken to assume that the actions of the Minnesota DFL in trying to get his critics thrown in jail are an indication of what sort of statements he believes the government should be punishing as "false."

Fortunately, we do have a better source of determining what Al Franken believes are lies and not allowed to be said on the air. He wrote a book on it, in fact. I haven’t read Lies (and the Lying Liars who Tell Them), but at 368 pages I would expect there’s a rather extensive list of things he believes are lies.

Franken clearly has strong opinions about what what he believes about what is true and what is false in politics and public policy, and has every right to express himself on these topics. Sadly, he doesn’t seem to recognize that others hold different beliefs than him and also have the right under the First Amendment to express those beliefs, even those beliefs that are what he considers "lies."

Let us hope that a Senator Franken doesn’t help scuttle the Censorship Doctrine only to turn around and get passed an even more draconian, anti-First Amendment measure that would threaten financial ruin for anyone who would speak other than the government-approved "truth." The only one who would benefit from that would be Franken himself, as radio hosts around the country bought his books to better understand what they are and are not allowed to say on the air.