By Dan Kennedy • The press, politics, technology, culture and other passions

In New Hampshire, criminalizing political speech

Kelly Ayotte

New Hampshire Republicans have hit upon a novel idea to help U.S. Senate candidate Kelly Ayotte: lock up a pollster hired by one of her opponents for the crime of engaging in political speech.

According to the New Hampshire Union Leader, the state GOP, chaired by Gov. John Sununu, has asked Attorney General Michael Delaney to investigate an allegation of push-polling by a pollster hired on behalf of Democratic congressional candidate Paul Hodes.

Push-polling is the practice of asking leading, negative questions of a rival candidate’s likely supporters. According to the Union Leader, respondents who identified themselves as leaning toward Ayotte were asked about her alleged inaction regarding a mortgage scandal that unfolded when she was New Hampshire’s attorney general and her deletion of e-mails when she stepped down from that office.

The Union Leader found that the calls were made on Hodes’ behalf by Mountain West Research, an Idaho-based polling firm hired, in turn, by Anzalone Liszt Research, a national outfit whose clients include Hodes. The Hodes campaign hasn’t exactly denied the allegation.

Now, as it happens, negative push-polling is illegal in New Hampshire unless the pollster identifies the candidate on whose behalf the call is being made and provides some other information as well. That means someone — an executive of one of the polling firms, or perhaps even Hodes himself — could be found to have broken the law.

It’s not clear what the maximum punishment could be. The Union Leader reports that the top penalty is a $1,000 civil fine. But an Associated Press story that appears in today’s Boston Globe reports that Associate Attorney General Richard Head says a violation could also carry with it a one-year prison term.

The law itself is an affront to freedom of speech, and so is the Republican Party’s attempt to use it to silence the opposition. Push-polling is a sleazy, underhanded campaign tactic — which means that it’s exactly the sort of political speech the First Amendment was designed to protect.

We await Boston Herald columnist Howie Carr’s take on all this.

Photo (cc) by Travis Warren and republished here under a Creative Commons license. Some rights reserved.

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  1. Mike LaBonte

    I don’t know how the NH AG will view this, but in general NH residents are very sensitive about polling of all kinds. They are barraged by political ads, pollsters, and canvassers to a degree that those of us in MA might have trouble imagining. I once heard a NH voter in line say “Give me that ballot – I can’t wait for the calls to go away!”

    While speech may be free, reasonable venues to conduct it are actually precious resources. News articles and political phone calls are not in the same category, because most of the the recipients likely did not choose the latter. It comes down to a question of how far people have to go to avoid the speech if they don’t want to hear it.

  2. I challenge your headline on this.
    Not unlike tracking contributions or reporting expenses, this is just a requirement. It’s not an affront to anyone’s political speech requiring the reporting of the acknowledgment of the call.
    If the law said that the Hodes campaign or other operatives couldn’t make the push polling calls, that would be one thing. But that’s not what the law says. The law says that the campaign footing the bills has to identify itself. The Hodes campaign simply had to lay claim to the push poll. They could still do the push-polling, they just had to report it. They didn’t; they broke the law.
    Hodes, who lives in my neighborhood, is on the ropes right now and the negativity only seems to be making it worse. He’s listened to the wrong people and abandoned his local media gurus for D.C.-types. As well, these attacks on Ayotte are a bunch of hogwash.
    But that’s OK, we’ll all remember in November.

    • Dan Kennedy

      @Tony: In other words, the law does not recognize the right of anonymous speech.

  3. Steve Stein

    @Dan, I think the Citizens United decision means the law DOES recognize the right of anonymous speech, until something like the DISCLOSE Act passes (and is deemed constitutional).

    I am not a lawyer. Not even close – I could be wrong.

    • Dan Kennedy

      @Steve: My point was that the New Hampshire law DOES NOT recognize the right of anonymous speech. I think there’s a good chance the Supreme Court would overturn it on those grounds if given the opportunity. But I’m not a lawyer, either.

  4. Where is anonymous political speech allowed these days? It’s not allowed with donations over $49. It’s not allowed with expenses over $49. It’s not allowed on advertising in print, radio, TV, or the Web. So, it’s not allowed on phone calls either … phone calls that are very intrusive compared to other forms of political communication. You’re simply wrong on this one buddy. That’s all. 🙂

    • Dan Kennedy

      @Tony: Here’s what the Supreme Court said in 1995:

      Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views … Anonymity is a shield from the tyranny of the majority…. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation … at the hand of an intolerant society.

      I’ll stick with principle. You are welcome to the deviations from principle.

  5. I don’t consider it deviation from principle at all. People deserve to know who is calling them and why. Push polling is perfectly fine – just have the guts to identify yourself when doing it. Otherwise, you shouldn’t do it. And can’t do it in our state. Hodes got caught.

    • Dan Kennedy

      @Tony: If you disagree that anonymous speech is a vital First Amendment principle, then no, you’re not deviating from principle. The Supreme Court, the Constitution and I disagree with you. That’s all. No big deal.

      Just to be clear, before this week, I had never heard of Hodes, and I couldn’t care less about him.

  6. Neil Sagan

    Unless or until the New Hampshire law has been challenged on First Amendment grounds, adjudicated and found to be an unconstitutional limit on free speech, I don’t think Dan can claim the high ground here.

    Free speech is not absolute nor is anonymous free speech.

    The New Hampshire legislature took action to address a very specific problem they perceived as relating to fair elections that they identified as resulting from anonymous push-polling. Their remedy was to require by law that the caller to identify themself much in the same way Democrats, in their attempts to remedy the Citizens United Decision’s effect on campaign law are trying to pass legislation that would require corporations underwriting political ads to identify themselves.

    I’m curious of Dan opposes or supports that effort.

    This stiff is not easy and its worth spending some time learning about and being willing to challenge your own initial opinion.

    How about this one, The Herald had the First Amendment right to tell the story about where Kerry’s boat was morred and to raise the issue of whether his was a tax scofflaw. That’s their right. But it is their responsibility to learn the other facts that are exculpatory and present them too, lest they be called biased and professionally irresponsible.

    • Dan Kennedy

      How about this one, The Herald had the First Amendment right to tell the story about where Kerry’s boat was morred and to raise the issue of whether his was a tax scofflaw. That’s their right. But it is their responsibility to learn the other facts that are exculpatory and present them too, lest they be called biased and professionally irresponsible.

      @Neil: Voluntary self-regulation? I’m all for it. How about you?

  7. Neil Sagan

    I shouldn’t have gone there. Back to first amendment rights anonymous or otherwise. What are your thoughts on my thesis?

    • Dan Kennedy

      @Neil: I’m conflicted. I think the Court got it right in the Citizens United decision, though I’m concerned about the fallout. Likewise, from a purist point of view I oppose efforts to for identification, although, again, I’m concerned about the effect of not requiring notification. So I don’t have a position.

      Although I tend to agree with my friend Harvey Silverglate, who notes that our political system has been drowning in corporate money all along. The idea that Citizens United will somehow make things worse may be based on a misunderstanding of how bad things already are.

  8. Neil Sagan

    Oh I should mention. I’m a big fan of Hodes, so much so that I’d rather have him as my Congressman the Stephen Lynch … not that I plan on moving.

  9. Just so we’re clear, there is nothing in the First Amendment that says that a political campaign can call voters, bend the truth, and do so without identifying themselves. This is not “anonymous speech” and it’s not protected from regulation – which is exactly what the law in N.H. is. I’m actually amazed that you see it this way Dan.

    With your read of the Bill of Rights, considering the campaign reporting requirements in Massachusetts, I’m surprised you haven’t taken this on yourself in state campaigns. If you looked at the state campaign finance laws, I think you’d be amazed at what you’d find.
    The OCPF, for example, requires that people who spend more than $250 on a municipal campaign, for example, must report the expenditure or face tens of thousands in fines and a year in prison. There is a case right now going on in Belmont on anonymous robocalls, expenditures which were not reported to the clerk. Leafleting under $250, for example, is not regulated.

    • Dan Kennedy

      @Tony: You are correct. You will not find that specific language in the First Amendment. ROFL.

      Reasonable people can differ over whether money is speech. But I think we can all agree that speech is speech.

  10. PS, just so we’re clear, part whatever … If Paul Hodes wrote a leaflet, went to Staples to print it up, and distributed it anonymously, there would be no problem. He has every right to do that. If Hodes made the calls himself, as an individual, that probably wouldn’t be a problem either. But he did neither.
    Hodes hired a firm to make the calls to voters and then, had those calls become push polls by the nature of the interaction between the company that made the calls and the voter. That is the difference here. He created a transaction between his campaign and a company providing a service. State law requires that the calls be identified. It’s a totally different process than someone printing an anonymous leaflet, which is where the Supreme Court has struck down regulation of anonymous activity.

    • Dan Kennedy

      @Tony: If you read the First Amendment, you will find no reference to Staples.

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