explaining that “an ambiguous statement, or the possible erroneous inference to be drawn therefrom” does not constitute a violation of ORS 260.532
How later courts described this case
- explaining that “an ambiguous statement, or the possible erroneous inference to be drawn therefrom” does not constitute a violation of ORS 260.532
- discussing whether a political committee was an aggrieved party such that it had standing to bring the action
Written by the judges who cited it.
The opinion
LINDE, J.,
concurring.
I join in the court’s opinion, but a caveat seems in order. The fact that the court has adjudicated a number of claims under the statute forbidding the publication of falsehoods about political candidates does not imply that the statute itself is constitutional. That has not been decided. The court has not been asked to match ORS 260.532, which now begins with the words: “No person shall cause to be written, printed, published * * against Oregon’s guarantee that “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever * * Or Const Art I, § 8. 1
The court’s opinion makes clear, nevertheless, that free speech considerations bear heavily on its interpretation of this statute. If this were an unfair trade practices act such as ORS 646.608, only a die-hard commitment to caveat emptor could explain the court’s definition of a falsehood. But a *207 political election is not identical to the commercial marketplace in principle, despite all efforts devoted to making it so in fact.
Given the political toxicity of the word “tax,” a legislator who sponsors any bond-financed program that, under the most unlikely circumstances, could be paid off by levying a new tax can expect to be attacked as if that single, unlikely possibility were the chief object of the proposal. Of course it is hyperbole to assert that the routine reference to a state property tax in Senator Brown’s proposed constitutional amendment “would have established a new statewide property tax.” The same provision appears in eight similar programs placed into our Constitution without such a tax in fact being employed. See Or Const Art XI-A, § 4; Art XI-E; Art XI-F(l), § 3; Art XI-G, § 3; Art XI-H, § 4; Art XI-I(l), § 4; Art XI-I(2), § 2; Art XI-J, § 4. But these provisions authorize such a tax when the legislature fails to provide other sources of repayment. In a political campaign, to say that such a provision “would establish” a tax may be a highly exaggerated statement of opinion, but I concur in the decision that it is not a “false statement” within the meaning of ORS 260.532.
The concluding words, “but every person shall be responsible for abuse of this right,” have been held to save the civil remedy for injuries to reputation which itself is guaranteed by Or Const Art I, § 10. Wheeler v. Green, 286 Or 99 , 593 P2d 777 (1979). ORS 260.532 is not confined to defamatory or even critical statements about a candidate, nor to a remedy for injury to reputation.
The court has stated that some historically established crimes and torts, such as fraud, would survive the prohibition against any law directed in terms against the substance of speech or writing, if the guarantees of 1859 and their 18th century precursors demonstrably were not intended to bar them. State v. Robertson, 293 Or 402, 412 , 649 P2d 569 (1982), see State v. Spencer, 289 Or 225, 228 , 611 P2d 1147 (1980). Of course, freedom of political criticism and its role in a “Republican Form of Government,” U.S. Const Art IV, § 4, were the chief objects of these guarantees. See also Deras v. Myers, 272 Or 47 , 535 P2d 541 (1975).