The phony fliers: can’t Mfume sue?

OK. The Justice Department won’t investigate. But can’t Kweisi Mfume sue?

To review the bidding (which Josh Marshall has been all over):

Bob Ehrlich and Michael Steele brought in busloads of homeless African-American people from Philadelphia to black precincts in Prince George’s County, Maryland, to hand out fliers headed “Ehrlich-Steele Democrats” and showing the pictures of three important African-American Maryland politicians, including Kweisi Mfume (former Congressman, former President of the NAACP). One of the three had indeed endorsed Steele, who is black, against Ben Cardin, who is white and who beat Mfume in a tough primary; none of them endorsed Ehrlich.

Some of the homeless folks claimed that they’d been told they would be handing out Democratic ballots.

The natural inference is that they were brought in from Philadelphia rather than being recruited from the plentiful supply of black homeless folks in Prince George’s County and in Baltimore because (1) they didn’t want the news of their recruiting efforts to hit the newspapers and (2) it was easier to fool out-of-towners into thinking that Erlich and Steele were Democrats.

And no, this wasn’t some rogue operation run by a consultant. They’d done it before; Ehrlich’s wife greeted the buses bringing in the Philadelphians; And Ehrlich ackowledged the program, unapologetically.

Arguably, the program was an attempt to defraud both the Philadelphians who were misled about what they were being asked to do and the Maryland voters who were misled about which candidates the people pictured in the fliers were supporting. (The Marylanders weren’t fooled; it turns out that, in Prince George’s County, even the poor and poorly educated residents are politically sophisticated, and an eyewitness I met on the subway that night told me that the flier-distributors were laughed at by the voters.)

The use of interstate facilities to carry out that fraud could have supported Federal charges. But the Justice Department has decided not to investigate. That seems to me like a reasonable call; I don’t want to see FBI agents making decisions about whether particular pieces of campaign literature were or were not dishonest enough to constitute fraud.

[By contrast, the Republican National Congressional Committee’s massive use of repeated false-flag robo-calls to harass voters and fool them into thinking they’d been harassed by Democratic campaigns was clearly over the line. I’d be happy to new legislation explicitly regulating that sort of activity, what happened this year &#8212 the RNCC spent millions of dollars to make tens of millions of calls &#8212 was already clearly illegal under the laws about interstate wire fraud (it’s established law that a vote is a “thing of value,” and fraud consists of any attempt to deprive someone of any “thing of value” by trick) and the use of interstate wires to annoy. DoJ should investigate and prosecute, and the Judiciary Committees in their oversight role ought to ask, and keep asking, tough questions if DoJ ducks.]

But if a company had used Mfume’s picture to promote one of its products when Mfume had actually endorsed a rival product, he would clearly have a right to sue under the “right of publicity” doctrine. Why doesn’t that apply here? A civil suit is, for many purposes, as a good as a criminal prosecution. The point is to humiliate the Republicans, not to send them away. And in one way a civil suit is better: a witness asserting his Fifth Amendment right not to incriminate himself in a civil suit can have that refusal held against him by the judge and jury.

I can imagine a PG jury awarding Mfume very large punitive damages in such a case. Wouldn’t that be fun?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

13 thoughts on “The phony fliers: can’t Mfume sue?”

  1. Hmm. It would be a fascinating case. I wonder if it would be possible to prove actual damages, but it would be easy to award punitive damages. I hope Mfume does go along with it.

  2. I think your contempt for the average voter is showing; The robo-calls may have been annoying, somebody might even have *hoped* that the blame would go the wrong way, but they DID identify the source if you listened all the way to the end. Which is pretty lame for a "fraud".
    Really, you'd have to be quite a moron to assume that if you get an annoying call with trash talk about a candidate, that it must be coming from that candidate.
    So, it's really only a fraud if the average voter is an idiot, *and can legally be presumed to be such*. I don't have that low an opinion of voters, but evidently you do.

  3. they DID identify the source if you listened all the way to the end. Which is pretty lame for a "fraud".
    Right, Brett. Everyone just listens all the way to the end. Do you?

  4. Also, Brett, for just the reason Bernard suggests, it's against the law not to "state clearly" the sponsor of an automated call at the beginning.

  5. Brett:
    Sometimes it's hard to figure out whether you're deliberately trolling or whether your partisanship has blinded you to logic.
    There's no implication that the voters fooled by this especially nasty trick were "idiots." Anyone who hung up right away, which is to say anyone sensible, (1) would have heard only the opening statement suggesting that the call was from the Democratic candidate and (2) would then get many further calls, further enraging him. Note that many of the calls were made late at night or early in the morning, when the recipients were asleep and especially likely to hang up quickly.
    We learned about the calls because voters called the Democrats' campaign headquarters and said things like "I'm not voting for your candidate because I'm annoyed about your harassing calls." The same thing happened to Democratic pollworkers election day. So it's not a matter of legal presumptions: all the prosecution would have to do is call some actual voters as witnesses.
    That's for the fraud charge. For the making-phone-calls-to-harass-or-annoy charge, you wouldn't even need that.
    I'm not sure why you want to defend the Republicans in their most scoundrelly moments. Do you actually admire this sort of behavior, as long as it works?

  6. "(1) would have heard only the opening statement suggesting that the call was from the Democratic candidate "
    Suggesting that, how? Because it had his name in it, and nobody but the Democrats would mention a Democratic candidate's name in a phone call? Sorry, there's a difference between "fraud", and not making absolutely certain that somebody won't jump to a stupid conclusion. For that matter, there's a difference between "fraud", and not following the law.
    Yeah, I'd prefer that they'd followed the law, it embodies a good policy, even if I've got serious questions about the constitutionality of compelled speech. But "fraud" this ain't.

  7. Brett:
    So the established fact that sleepy and annoyed voters actually blamed this on the Democrats and not on the Republicans simply doesn't count? Of course, the fact that in order to carry out the scam they had to break the law by not identifying themselves up front makes the intent that much clearer.

  8. Yes, Mark, the fact that *some* sleepy, annoyed, voters blamed this one on the Democrats and not the Republicans doesn't count. It takes more than failing to completely eliminate any possiblity of somebody making a stupid mistake, to constitute fraud. You have to actively deceive people. And these robo-calls failed on two counts:
    1. They actually DID identify the source if you listened to the whole thing.
    2. They attacked the candidate, and only a moron assumes that a call attacking a candidate was made by that candidate.
    Some people jumped to the wrong conclusion? Well, half the population *does* have a below average IQ, you know…

  9. Hmm. Intent to deceive, and a large group of people who were in fact deceived. In addition to the harassment.
    And for the commenter, can I mention the contempt for our entire nation embodied in the smugly entitled "I'd prefer that they'd followed the law"? Because, y'know, whether your national campaign committee obey state and federal laws really just is a matter of preference if you're a republican.

  10. The final comment (just before this one) was, as Spencer Tracy might have said, "Cherce," (choice, to those of you too young to remember him).

  11. Well, Mark surely is a friend of free speech, isn't he? Let me try:
    I'd like to see someone look into the statements that every Democrat running for election made, to see if the statements were true. If a Democrat knowingly made an untrue statement, let's prosecute and throw the rat bastard in jail. Make a proper example of him. Now, admittedly, I'm a little nervous about letting a jury make the determination of what is and isn't true, so I think we should be very careful to bring these prosecutions only in jurisdictions where we think we can win a conviction.

  12. "If a Democrat knowingly made an untrue statement, let's prosecute and throw the rat bastard in jail. Make a proper example of him."
    IOKIYAR in a nutshell.

  13. another Kossack misundstands the entire conversation. how novel.
    No, little one, that's not my point. That's certainly not Mark's point–to the contrary. My response was sarcastic. Yours, as is typical for your kind, was idiotic.

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