'Nasty as They Wanna Be' Politics: Clean Campaigning and the First Amendment

38 Pages Posted: 21 Oct 2014

See all articles by Terri Day

Terri Day

Barry University - Dwayne O. Andreas School of Law

Date Written: 2009


Elections always raise the specter of concern about the content of the election debate. Discussion will focus on whether candidates and their supporters attempted to persuade the electorate with positive information about the issues, the candidates' qualifications and their experience or whether they attempted to persuade by negative campaigning and mud-slinging. Does the tenor of the debate matter to voters? If so, what, if anything, should be done to control the content of campaigning to ensure some degree of electoral integrity? Contrary to the conventional view that the nature of campaigning has decayed over time, mud-slinging has always played a role in American politics.

However, since the advent of twenty-four hour information access through television and internet, the effects of mud-slinging and negative campaigning may have greater impact than ever before.The ability of twenty-first century media to transform little ripples of negative campaigning into large tidal waves has created concern that the integrity of the electoral process is compromised by the pervasive and exaggerated mud-slinging. In response, state and municipal legislators have enacted legislation or practices to promote fair campaigning. Many of these efforts to "cleanse" the campaign debate are voluntary and provide neither an enforcement mechanism nor a private cause of action. Even if these Campaign Codes are non-enforceable, free speech advocates argue that clean campaign pledges chill political speech and violate the First Amendment.

This article analyzes these legislative attempts to "clean up" or "gentrify" the campaign debate. It addresses the underlying premise and constitutional implications of government restrictions on negative campaign speech, addresses the purpose and nature of "voluntary" campaign pledges, discusses statutes that restrict negative campaign advertisements and false statements, considers the public's perspective on negative campaigning, focuses on First Amendment implications, and concludes that non-voluntary clean campaign pledges and negative advertising statutes are per se invalid.

Keywords: Politics, clean campaign pledgess, First Amendment, negative campaign speech, negative advertising statutes

JEL Classification: K10, K39

Suggested Citation

Day, Terri, 'Nasty as They Wanna Be' Politics: Clean Campaigning and the First Amendment (2009). Ohio North University Law Review, Vol. 35, 2009, Available at SSRN: https://ssrn.com/abstract=2512383

Terri Day (Contact Author)

Barry University - Dwayne O. Andreas School of Law ( email )

6441 East Colonial Drive
Orlando, FL 32807
United States

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