Free speech during campaign at issue

By Norman Draper, Star Tribune

Its supporters say it's a crucial tool in keeping even the most vitriolic elections truthful.

To detractors, though, Minnesota Statute 211B.06 puts a damper on free speech and severely restricts what anyone can say or write about a candidate or an election issue.

Now, the state law has surfaced in the wake of an ugly levy referendum in the Robbinsdale school district, where an outside consultant was brought in to scuttle a district tax request, and pro-levy forces were tossing around charges that the anti-levy side indulged in distortions, lies and race-baiting.

Some say the lawsuit stemming from the Robbinsdale case -- which is aimed at declaring the law unconstitutional -- could have far-reaching implications.

"If the court finds in favor of the plaintiff, it seems to me it would allow anybody on any side of any election to do or say anything they wanted to," said Charlie Kyte, executive director of the Minnesota Association of School Administrators. "I just don't think that's good for Minnesota, or the voting public, to try to make decisions based on untruths on either side."

The law, which bans anyone from knowingly distributing false political or campaign information, fuels about two dozen election-related complaints a year.

It comes into play in state legislative, City Council and school board elections, among others. Violations carry a maximum fine of $5,000, though that's rarely applied.

In the Robbinsdale case, the statute has become a focus in the debate over how much campaign information should be limited.

After the defeat of the Robbinsdale levy request on Nov. 6, levy opponents sued both Robbinsdale superintendent Stan Mack, and the state Office of Administrative Hearings, which enforces 211B.06. The charge is that both Mack, because of his accusations that opponents were purposely distorting the truth, and the state, by having such a law on the books in the first place, are trampling all over levy opponents' free speech rights. Opponents also said they were concerned that district officials were preparing to use the state law on false campaign information as a basis for suing them, and wanted to beat the district to the punch by targeting the law itself.

Mack had attributed the defeat of the district's levy request -- for $22.8 million a year for 10 years -- to an "onslaught" of anti-levy phone calls and mailings that he said had "no basis in fact."

As of Friday, the district had not filed a response to the suit or a suit of its own alleging violations of 211B.06.

Ultimately, the goal of Erick Kaardal, the attorney for the anti-levy groups in the Robbinsdale case, is to rid the state of 211B.06 so that schools can't use the statute to sue levy opponents.

"The state can't be a guardian of the truth with respect to political speech," said Kaardal, who has been made it a personal priority over the past eight years to torpedo the statute. "The first amendment does not allow lawsuits based on falsity in school levy elections."

Proponents of the law note that it rarely results in any kind of penalty. They say its emphasis on the intent or "reckless disregard" for the facts in the spreading of false information protects those who make mistakes or merely want to voice opinions on issues or candidates.

"The law doesn't in any way restrict your ability to put out views," said Susan Gaertner, Ramsey County attorney. "What it limits is your freedom to tell blatant lies about an issue or candidate."

A burden on county attorneys

Before 2004, enforcement of 211B.06 was left up to county attorneys. It was shifted to the Office of Administrative Hearings (OAH) after county attorneys complained that cases were taking up too much of their time and resources. By Gaertner's estimate, her office spent about $90,000 a year on complaints alleging violations of the election law.

Last year, according to OAH, 55 campaign complaints were submitted to the office, of which 25 involved alleged violations of the false political and campaign material law. Of those, 19 were dismissed and four were withdrawn. Violations were found in the remaining two cases.

At least two cases involved school bond elections or levy referendums. In one case, an opponent of a proposed $24 million Farmington schools bond issue to build a sports and wellness center charged that the school district distributed false financial information about what facilities the bond issue would pay for. The complaint was dismissed. In another, a Westonka resident in favor of a proposed district levy and bond issue charged that opponents Tom and Cindy Notch exaggerated the tax impact of the proposed bond. That complaint was also dismissed.

"I had no idea we would be called before a judge with however many counts against us," said Cindy Notch, who added that she and her husband were careful to cite sources when distributing information during this month's referendum. "I was nervous about being called in front of a judge ... People ought to know that if you're going to promote a 'no' vote, you're going to be subject to some daggers, and you'd better be ready to defend yourself."

Despite the experience, Notch said, she supports the law.

"The judge, by enforcing the law correctly, said what we were doing was fine," she said.

Though his district was a target of a 211B.06 complaint, Farmington schools spokesman Aaron Tinklenberg said he doubted that would make the district more cautious next time a levy or bond election came around.

"In my experience, it's a good law," he said.

Norman Draper • 612-673-4547 • ndraper@startribune.com