In a bizarre case that raises important First Amendment issues, a New Hampshire newspaper owner has been arrested and charged with publishing political ads that the state attorney general’s office claims failed to comply with disclosure laws.
According to Nancy West of InDepthNH, the ads failed to include the words “Political Advertisement,” which is a violation of state law. The publisher, Debra Paul of the Londonderry Times, faces six misdemeanor counts. If she’s found guilty, she could be fined $2,000 or even sentenced to prison for a year. “I would like to think the attorney general’s office has more important matters to deal with than to send press releases out on misdemeanors such as this,” Paul said, according to West. “With multiple unsolved homicides over the past year, this seems a bit absurd.”
According to a statement issued by the office of Attorney General John Formella, the charges involve incidents dating back as far as 2019:
Ms. Paul, publisher of the Londonderry Times newspaper, was previously investigated and warned against such conduct on two prior occasions by the Attorney General’s Office Election Law Unit. Those instances ended with formal letters being issued to her in 2019 and 2021. A ‘final warning’ letter issued by the Election Law Unit in September of 2021 warned Ms. Paul that all political advertising must be properly labeled as such in her publication.
Paid advertising — even political advertising — is a form of commercial speech, and thus doesn’t carry with it the same protections as other forms of speech. Nevertheless, the case against Paul seems absurd. I flipped through the most recent PDF edition of the Londonderry Times and found a couple of political ads, including the one I’ve embedded here. It’s properly labeled; I’m sure at this point Paul would just as soon avoid a seventh count. But if it didn’t say “Political Advertisement,” would you think it’s anything other than a political ad? Of course not.
At the very least, New Hampshire law ought to recognize whether there was an intent to deceive. There is obviously no deceptive intent here. And Formella has placed himself in the running for a 2023 New England Muzzle Award. Paul is scheduled to be arraigned on Oct. 19. Not only should the judge immediately dismiss the charges against Paul, but they should also sanction the attorney general.
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That certainly seems excessive, but what would you propose as a penalty for not properly labeling a political ad if there is such a rule? Rules without penalties are efffectively meaningless. And what if an ad is written in such a way as to appear like a regular news item without proper labeling? Maybe jail time is overdoing it, but surely you would want some enforcement.
As I wrote in the post, intent ought to enter into it.
Agree; the charges should be dismissed. That said, IANAL, but I wonder if the real problem here isn’t the underlying statute.
Almost certainly the underlying statute is problematic, but there are plenty of garbage/outdated statutes that prosecutors choose not to be heavy handed with.
Is there not plenty of room in civil law for this?