Unclear and Unconvincing: the Truthiness Requirement of California's Ballot Pamphlet Arguments
Abstract
“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to receive truthful information about ballot measures while staying within the limits of the First Amendment. To satisfy the freedom of speech, California requires challengers to show that argument statements are false or misleading by “clear and convincing” evidence. This standard is at once too low to satisfy the demand for rigorous protection of political speech, and too high to quash insidious hyperbole that distorts the political landscape.
This article identifies the implicit tensions between the First Amendment and regulations that potentially censor political speech in the California voter pamphlet, analyzes the efficacy of permitting often-misleading arguments under the limited public forum doctrine, and concludes that California should shift the evidentiary burden onto the proponents of the pamphlet’s arguments in order to better serve the aims of the freedom of speech while also improving the integrity of the election process.