Dem Senators Say 1st Amendment Doesn't Protect 'Fraudulent Speech'; Bill Would Outlaw Misleading Election Info

By Matt Cover | December 14, 2011 | 6:05 PM EST

Sen. Charles Schumer (D-N.Y.) (AP Photo)

( – Democratic Senators Chuck Schumer (D-N.Y.) and Ben Cardin (D-Md.) have introduced legislation that would make it a federal crime to publish false or misleading election material in an effort to prevent people from voting.

The law, the Deceptive Practices and Voter Intimidation Prevention Act of 2011, would bring federal criminal and civil penalties to anyone who intentionally puts out false information in an attempt to dissuade or prevent people from voting. The law only applies to false information published 90 days before a federal election and only to information regarding voting eligibility and the time and place of elections.

Cardin, one of the bill’s chief sponsors, told that his bill does not violate the broad First Amendment protections afforded to political speech, saying that there is no constitutional protection for “fraudulent speech.”

“There’s not a First Amendment protection of fraudulent speech. It’s not a First Amendment-protected right,” Cardin said at the Capitol on Wednesday.

Cardin also said that the law would target only those with “an intent to disenfranchise” voters by publishing confusing information about when or where an election was taking place or who was eligible to vote.

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He explained that the law would not try to outlaw all types of misleading or potentially false political speech, but is only “aiming” at attempts to disenfranchise voters.

Sen. Ben Cardin (D-Md.) (AP Photo)

“We’re not aiming at that,” said Cardin. “We’re aiming at – as you saw – these are efforts to disenfranchise voters. When you tell them the wrong date or you have a fraudulent party identification that’s clearly fraudulent – issues like that [that] are clearly aimed at disenfranchising voters.”

The bill strictly outlaws any production – print, electronic, or telephonic – of any intentionally false information with the intent to mislead or disenfranchise voters within 90 days of a federal election.

The bill also prohibits intentionally misleading voters about who has or has not endorsed a candidate and prohibits anyone from interfering with or hindering voting or voter registration with the intent to prohibit someone from voting or registering to vote.

In other words, the law makes it illegal to intentionally misrepresent an endorsement of federal candidates and to disrupt voting and voter registration drives in an effort to prevent people from voting or registering to vote.

The law also directs the attorney general of the United States to issue corrective information should the prohibitions on misleading information be violated and local officials not act quickly enough to correct the misleading information.

The law would allow the attorney general to respond to reported violations of the law by issuing written or any other communications he deems necessary to correct misleading election information. There does not have to be an ongoing investigation or a conviction for the attorney general to be able to issue the correction, only a credible report that the law has been violated.

Cardin said the law could be violated in a number of ways by different people – not just official campaigns – including a radio broadcast giving out misleading information on when an election is happening.

“Sure,” Cardin said when asked if a misleading broadcast could violate the law, “[if] somebody’s attempting to stop people from voting, [then] yes.”

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