Oregon Advisory Opinions February 23, 1967: OAG 67-24 (February 23, 1967)

Oregon Attorney General Opinions

1967.

OAG 67-24.

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Legislation to prohibit a candidate from using the term "re-elect," where the candidate had been previously elected to the office he is seeking but is no longer the incumbent, would not be constitutional.

You state as follows:

"It seems to me that in order to avoid misleading the voters, use of the term 'reelect' should be reserved for incumbents seeking to succeed themselves in the offices they presently hold."

You then ask:

"In this connection, would you pleace give me an opinion on the following matter: would it be constitutional to prohibit use of

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the term 're-elect' by persons who are not incumbents but who, by virtue of the fact that they held any given public office in years past, use such a term on their campaign material and in the Voters' Pamphlet to create the false impression that they are in fact incumbent office holders. I feel that the latter practice is misleading to the voters and should be prevented."

It is presumed that you are referring to candidates who have at some time in the past been elected to the offices they are again seeking, but not at the immediately preceding election for such offices.

The only constitutional restrictions which could be applicable to render such legislation invalid would be Article I, § 8, of the Oregon Constitution, and the First Amendment to the United States Constitution.

Article I, § 8, Oregon Constitution, provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

The First Amendment to the United States Constitution provides in part:

"Congress shall make no law * * * abridging the freedom of speech, or of the press * * *."

The First Amendment to the United States Constitution applies, through the Fourteenth Amendment, to state governments as well as the Federal Government (Schneider v. Irvington, (1939) 308 U.S. 147, 84 L.Ed. 155) and the United States Supreme Court has said in Wood v. Georgia, (1962) 370 U.S. 375, 386, 8 L.Ed. (2d) 569, 578:

"* * * The ultimate responsibility to define the limits of state power regarding freedom of speech and expression rests with this Court * * *."

"* * * a broad conception of the First Amendment is necessary 'to supply the public need for information and education with respect to the significant issues of the times. * * *' "

With respect to political campaigns it has been said:

"* * * Every election is held pursuant to law, and all candidates for public office, no matter what their political party may be, are entitled to present their views to the electorate through the medium of free speech." Matthes v. Collyer, (1961) 223 N.Y.S. (2d) 280, 282.

Constitutional guarantees of freedom of speech and of the press, as defined by the United States Supreme Court, apply to virtually all types of campaign material. In Lovell v. Griffin, (1938) 303 U.S. 444, 452, 82 L.Ed. 949, 954, the court said:

"* * * The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. * * *"

In Lamont v. Postmaster General, (1965) 381 U.S. 301, 14 L.Ed. (2d) 398, the court held that, while the United States Government could choose to discontinue the postal service entirely, as long as the mails exist the right to their use is a basic part of the freedom of speech. By analogy, it could be concluded that as long as the State of Oregon publishes a Voters' Pamphlet, constitutional guarantees of freedom of speech would apply to candidates' statements therein.

The legislation you are contemplating would seek to prohibit a candidate from using the term "re-elect" in his campaign material even though he had in fact been at some time previously elected to the office he is seeking.

Webster's Second New International Dictionary, defines "re-" as:

"2. Again; ---used chiefly to form words, esp. verbs, of action, denoting in general repetition (of the action of the verb), or restoration (to a previous state), as in rejoin, to join again, reiterate, to iterate again, renew, to make new again, restitution, reseat, reguild, recase, etc."

It is seen by combining the Webster's definition of the prefix "re-" with the word "elect" that it would be accurate for a candidate to say he is seeking "reelection" if he has, in fact, at any time previously been elected to the office he is seeking. While some voters may assume that the candidate is an incumbent because incumbents most frequently employ the term---much the same as may persons, on hearing the term "doctor," assume that it refers to a doctor of medicine---the term by definition does not technically carry such implication.

Thus such legislation would attempt to prohibit some candidates from making a truthful statement.

In Garrison v. Louisiana, (1964) 379 U.S. 64, 74-75, 13 L.Ed. (2d) 125, 133, the court held that where "discussion of public affairs" is concerned,

"* * * only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times [New York Times Co. v. Sullivan, (1964) 376 U.S. 254, 11 L.Ed. (2d) 686, 706, is a statement made "with knowledge that it was false or with reckless disregard of whether it was false or not"] may be the subject of either civil or criminal sanctions. For speech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our 'profound national

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commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' New York Times Co. v. Sullivan, 376 US, at 270, 11 L.ed 2d at 701, 95 ALR2d 1412."

Deliberate or reckless lies, however, do not enjoy constitutional protection. The court continued:

"The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and Defamation: Fair Game and Fair Comment I, 42 Col L Rev 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which 'are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality . . .' Chaplinsky v. New Hampshire, 315 US 568, 572, 86 L ed 1031, 1035, 62 S Ct 766. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection."

Because the word "re-elect" may be defined to mean simply "elect again," in the sense that a candidate had at one time been elected to the office he is seeking, the legislation you propose would not meet the test announced by the United States Supreme Court in Garrison v. Louisiana, supra.

We therefore conclude that legislation to prohibit any candidate who is not an incumbent from using the term "re-elect" in his campaign material, although he had previously been elected to the office he is seeking, would be held unconstitutional.