Play It As It Lies
In the week leading up to a primary election last September, John Knight, a candidate for the sixth district seat on the Hennepin County Commission, did what any ambitious young politician of means would do. He hired a telemarketing company for a get-out-the-vote phone blitz. Over a six-day period, the company made some 10,000 calls on Knight's behalf. Reading from a short script prepared by Knight, the callers concluded with the lines: "John Knight is the Republican-endorsed candidate for Hennepin County Commission. Remember, John Knight is the only Republican candidate for County Commissioner and he needs your vote on September 10th." In the Republican-leaning western suburbs that constitute the sixth district, Knight's status as sole Republican in the race would surely be a great advantage. But there was a problem with the pitch: It wasn't true. As it turned out, three of the other candidates in the nonpartisan primary had identified themselves as Republican, including the ultimate victor, Linda Koblick. Koblick's history in the party was hardly a secret. She had been active in GOP affairs for more than a decade, serving in capacities ranging from volunteer to chairwoman of the party's Senate District 45 Executive Committee. In that latter capacity, just two years ago, she nominated a young attorney and fellow Minnetonka resident to serve as vice-chair for the local party precinct. His name? John Knight.
Not surprisingly, Koblick and her supporters were incensed when they learned of Knight's phone bank operation. In short order, Koblick fired off a formal letter of objection to Knight, requesting that he change his message. Knight ignored the request. Koblick also complained to Hennepin County Attorney Amy Klobuchar, who, citing conflict-of-interest rules, passed the matter along to Carver County Attorney Mike Fahey for investigation. There it lingered until late last month, when Knight was hauled before a grand jury in Hennepin County and charged with four counts of violating the Minnesota Fair Campaign Practices Act. Under a seldom-used provision of the law, it is a gross misdemeanor--punishable by a $3,000 fine and up to a year in jail--to knowingly or with a "reckless disregard for the truth" make or prepare a false political statements in a campaign. "In my mind, this is a personal vendetta. And I believe it's an abuse of the system. The whole thing is absurd," complains Knight. Naturally enough, Knight is fighting to have the charges against him dismissed. As a matter of law, he contends, the case against him doesn't meet the "reckless disregard" standard because it was his opinion that Koblich was not a Republican when she ran against him in the primary. Why? Knight, who ran a primal "lower taxes, better roads" campaign, says Koblich behaved more like a DFLer than a Republican. He points out that Koblich was endorsed by various DFL honchos (including county commissioners Gail Dorfman and Peter McLaughlin). And, Knight argues, by opposing him--the party's endorsed candidate--Koblich was effectively opposing a fundamental party mission: getting endorsed candidates elected.
Such explanations may strain credulity. After all, no one questions that former governor Arne Carlson was a Republican, even though Carlson opposed the party's endorsed candidate, Allen Quist, in the 1994 primary. But the Knight case does raise questions about the propriety of criminalizing political speech. So does a similar case pending against Greg Copeland, a St. Paul resident who ran for a vacant state senate seat last year. In that campaign, Copeland (who is also a Republican) claimed to be the "only pro-life candidate" in the race. John Tomczak, an Independence Party candidate and also a self-avowed pro-lifer, subsequently complained to Ramsey County Attorney Susan Gaertner, who is now prosecuting Copeland. Copeland says he had no idea that Tomczak shared his pro-life views, and that Tomczak had not publicly expressed any position on abortion in the course of the campaign. For that reason, Copeland says, the charges against him don't satisfy the reckless disregard standard. And like Knight, Copeland, whose case is slated to go to trial on March 3, says the law itself ought to be tossed out. "This brings up images of Big Brother and King George," he says. "It's not in the spirit of public debate to have prosecutors acting as the speech cop." That's a view shared by attorney Erick Kaardal, the chairman of the Third Congressional District Republican Party. On February 3, Kaardal filed a lawsuit in U.S. District Court against prosecutors Klobuchar and Fahey for pursuing the case against Knight in the first place. As a practical matter, it is unlikely that a federal judge will intercede in the case before the state court has had its say. But Kaardal argues that an important principle is at stake. Whether or not Koblick was a Republican and what Knight believed are irrelevant, he says; determinations of party membership ought to be a matter for the party to decide, not the courts. "We simply don't think this type of speech should be subject to criminal prosecution." And it rarely is. The last person to be convicted in Minnesota on a false campaign materials charge was Republican congressional candidate Tad Jude. In 1994 Jude ran afoul of prosecutors for airing an incendiary television advertisement in which he accused rival Bill Luther of blocking anti-crime legislation while in the state legislature. Luther's actions, the ad strongly implied, led directly to the furlough of a convict who then proceeded to kidnap and rape a woman and her two daughters. In 1996 the Minnesota Court of Appeals threw out Jude's conviction. At the time, however, the relevant provision of the Fair Campaign Practices Act set the bar much lower than it does today. To be found guilty of violating the law, a candidate only had to distribute material "he knew or had reason to believe was false." In the wake of the Jude case, the state legislature tweaked the language of the law, adopting a reckless disregard standard that was taken from a landmark U.S. Supreme Court case, New York Times v. Sullivan.
With Jude, the Minnesota Civil Liberties Union filed a friend of the court brief arguing that the law, as then written, was unconstitutional. But, says MCLU executive director Chuck Samuelson, his organization is divided on the Knight case. "I'm on the fence," says Samuelson. "On one hand, if the county attorney can prove that this guy exceeded the Times v. Sullivan standard, which affords an amazing amount of protection, maybe that's okay. On the other hand, the chill that criminal prosecution brings to free speech is very well documented in American history."
Alan Weinblatt, an expert on state election law and a longtime DFL attorney, says criminal prosecutions ought to be reserved for only the most egregious cases. And he suspects that the high standard of proof will make it hard to win a conviction in the Knight case. If Knight can persuade a court that his "only Republican" statement reflected an opinion, Weinblatt posits, the prosecution will fail outright.
The issue of opinion seems to be a chief concern of Hennepin County District Court judge Mel Dickstein. Two weeks ago he heard oral arguments on Knight's motion to have the case dismissed. Questioning prosecutor Fahey, Dickstein asked whether it would have made a difference if Knight had identified himself as "the only real Republican." Fahey responded that it would not.
In the end, says the MCLU's Samuelson, the Knight and Copeland cases raise another, much simpler question: What is the benefit of using the law as a cudgel against candidates who have already been repudiated at the polls? "Frankly, I don't know why they're bringing these prosecutions," Samuelson says. "Except that sometimes there is some petty vindictiveness on the winning side."
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