Emotional issues can be turned into political attack ads
Published November 18, 2015
by Doug Clark, Off the Record, published in Greensboro News-Record, November 18, 2015.
There she goes again.
N.C. Supreme Court Justice Robin Hudson, I mean.
Last year, Hudson was the target of TV attack ads calling her soft on child molesters. She survived the assault, easily winning re-election after the blatantly misleading ads drew a powerful backlash.
Yet, she wrote a dissenting opinion in a similar case issued Nov. 6, State v. Packingham, contending that a state law barring sex offenders from social media sites is an unconstitutional violation of their First Amendment rights.
I can see the next ad now: “Robin Hudson lets predators stalk your children on Facebook!”
Actually, we won’t see that ad soon. Hudson doesn’t have to run again until 2022. And she might choose to retire then.
Welcome to the new world of judicial politics, where special-interest groups with lots of money use emotional cases to fuel TV attack ads against justices they want to unseat.
It’s happening nationally, but North Carolina was second last year in the amount of money spent in state Supreme Court races — $6 million — according to the Brennan Center for Justice. Much of the money came from business groups, but it could be any special interests — unions, environmentalists, big oil, you name it. The way money flows in this post-Citizens United era, it’s not always clear who gives it.
One thing is sure: The topics highlighted by these TV ads — child molesters in Hudson’s case, or law and order in the banjo-picker spots touting Justice Paul Newby a couple of years earlier — have nothing to do with the sponsors’ real interests. They choose the most sensational cases to appeal to voters’ emotions, but the actual intent may be to oust a judge who’s perceived to be unfriendly to business or some other pet cause.
Even the emotional cases are much more complex than they’re presented to be. In the child molester case tied to Hudson, the question was whether a law requiring electronic monitoring of sex offenders could be applied retroactively to individuals who were sentenced before the new law was enacted.
The defendant in the Packingham case, who had been convicted of taking indecent liberties with a minor in 2002, violated a 2008 state law that bars registered sex offenders from using social media that are also accessible to minors. Think Facebook. He claimed the law violates the First Amendment.
Writing for the 4-2 majority, Justice Bob Edmunds didn’t agree. The law’s intent, he wrote, is to keep sex offenders from finding personal information about minors through social media. Its essential purpose is to restrict conduct, and it “only incidentally burdens the ability of registered sex offenders to engage in speech. ... ”
This drew a scathing response in The Washington Post by David G. Post, a former law professor at Temple University and a senior fellow at the New America Foundation’s Open Technology Institute.
“The majority’s version of things makes for some pretty ghastly First Amendment law,” he wrote. “If ‘accessing a Website’ is conduct and not speech, the scope of potential government regulation of our use of Websites (and the Internet in general) vastly expands.” The fact that sex offenders are “the despised minority du jour” should not excuse decisions that threaten everyone’s rights, Post added.
Maybe. But the court also had to find a compelling interest — protecting children — in specifically blocking sex offenders.
Hudson wrote that the law was too broad, barring offenders from a wide range of sites, including news sources. In fact, to post comments on the News & Record site, readers must register with Facebook — so the law does keep certain people from participating in that forum, among others.
I asked Edmunds last week about the potential for political manipulation of cases like this. “Hot-button issues come with the job,” he said. “You do your level best to put the politics in the back of your mind and get on with it.”
Fair enough. The danger is if judges let political fears creep into the front of their minds and avoid making unpopular decisions.
Edmunds is seeking re-election next year, but the legislature added a twist: He will face a retention election, meaning voters will decide whether to keep him in office, yes or no. That could remove some of the politics and perhaps keep out the big money — unless someone is really determined to unseat him. In that case, without a candidate to promote, his opponents would have to wage an entirely negative campaign. So look out.
But he draws hope from this: “One lesson from Robin’s election was that the negative campaign didn’t work,” he said.
Untruthful attacks that seek to exploit emotional issues should never work.
