| So how does our sample ad fare under these rules?
Taken in context as applied to ballot question 1 and LD 1020, I find the following claims to be "material" in the ad's attempt sell a "yes vote" on ballot question 1 to Maine voters:
1. Special interests got the Maine legislature to approve homosexual marriage.
2. Special interests tried to prevent Mainers from voting.
3. Unless question one passes there will be real consequences for Mainers
4. A no vote would cause "a flood of lawsuits" against law abiding citizens who conscientiously object to same sex marriage on religious grounds.
5. A no vote could cause Church organizations could lose their tax exemptions.
6. A no vote would allow homosexual marriage to be taught in schools whether parents like it or not.
First Claim: "special interests got the Maine legislature to approve homosexual marriage."
To be as liberal (pun intended) in our interpretation as possible, let's say "special interests" is defined "as any individual or organization with a an interest in passing the bill." So the term "special interests" can mean anyone who is/was for the law's passage. This supports this portion of the ad's claim.
Now we look at the claim that these special interests "got" the legislature "to approve" the law.
The evidence offered within the ad is a claim that grassroots lobbying efforts, by such groups as the National Center for Lesbian Rights, urged Mainers to "Please call or email your state representative's office now to urge them to vote in favor of the bill."
They made this plea via email and other medium.
Video text and imagery concerning the claim is as follows:
Screen shows a news clip reading:
"Please call or email your state representative's office now to urge them to vote in favor of the bill."
- NATIONAL CENTER FOR LESBIAN RIGHTS
Underlying the clip is two sheets of paper, one with a masthead reading NCLR, and on the other there can be seen only a blue State of Maine shape at the top right, and a blue and yellow logo at the top left.
The claim states that this lobbying effort is the primary reason the legislature voted "to approve" the bill.
This claim could be true, assuming the majority of the legislature voted as it did in response these campaigns.
In this case, the evidence does not support this portion of the claim. As the evidence in the ad stands, the cause and effect relationship between the special interests' efforts and the legislature's vote cannot be definitively established. It could range anywhere from no influence to an amount of influence that supports the ad's claim.
Evidence that a grassroots lobby effort exists, and a favorable outcome was attained, is not, in itself, evidence of it's success to the degree claimed in the ad. A survey of those in the legislature who voted for the bill asking why they voted for the bill, and if they were influenced by these lobbying efforts would constitute sufficient evidence, if the result backed up the claim. To my knowledge, no such evidence was stated or cited in the ad.
Now for the phrase "homosexual marriage." What the claim says, however, is that the legislature voted "to approve homosexual marriage." The evidence consists of text on the screen saying:
"LD 1020
Homosexual
Marriage Debate"
The text overlay video footage that appears to be the state capital building exterior fading to interior footage of what appears to be the legislature at work. The text and images successfully make a connection to LD 1020, so far so good.
There is, however, no evidence to support the use of the phrase "homosexual marriage." The title of LD 1020 is "An Act To End Discrimination in Civil Marriage and Affirm Religious Freedom," and this is what it does. There is no reference to homosexual marriage in the bill.
It could be argued, however, that Sec. 650-A, Codification of marriage, which is, under LD 1020, amended to define marriage as a "legally recognized union of 2 people," and the specification that marital and familial terms be gender neutral under the law, constitutes approval of "homosexual marriage." Being as this a logical implication of the law, I agree there is sufficient evidence to support this portion of the claim.
In summary, both in context and out of context, this claim lacks sufficient evidence to make it credible, despite portions for which sufficient evidence exists. Taken as a whole, the claim that "special interests" "got" the legislature "to approve" LD 1020 is insufficient. Therefore it is deceptive.
Second Claim: "tried to prevent Mainers from voting, but question 1 gives us our vote."
That claim that "question 1 gives us our vote" is self-evidentially true, but the phrase "tried to prevent Mainers from voting" I confess I don't understand. I find this claim confusing, and lacking in any evidence to support or even explain it. There is one possible meaning I see, that the intent was to claim that a vote was denied by some sort of "end-run" around voters by going through the Maine Legislature to pass this law.
If such was the intent of the claim, it is self-evidentially false. Mainers vote for state representatives, and they make the laws. The so-called "People's Veto" cannot be applied to a law that has not been first passed by the legislature and signed by the governor.
This claim is inherently deceptive by the virtue of it's vague phrasing. It makes a definitive claim without saying how Mainers were prevented from voting, or by what mechanism. Was there a relevant vote that Mainers were barred participating in? Was there a procedural maneuver that by-passed the Maine Legislature? Exactly what form did this prevention from voting take? We don't know and we can't know based on the ad's content.
Third Claim: "Unless question one passes there will be real consequences for Mainers."
Prof. Scott T. Fitzgibbon of Boston College Law School, makes a short speech making four separate claims. Beginning with: "Unless question one passes there will be real consequences for Mainers."
Hard to argue with that logic, as it is self-evidentially true that there will be real consequences for Mainers in any case - if the question passes, or if it doesn't pass. Just time passing results in real consequences - even if the only real consequence is that the time has passed.
Fourth Claim" "Legal experts predict a flood of law suits against individuals, small businesses, and religious groups."
Evidence for the claim includes:
Fitzgibbon makes the claim verbally.
A "Letter from legal scholars, May 1, 2009" sent to Gov. Baldacci. The letter was sent over the signatures of four legal scholars: Thomas C. Berg of the University of St. Thomas School of Law, Carl H. Esbeck of the Law University of Missouri, Robin Fretwell Wilson of Washington and Lee University School of Law, and Richard W. Grant of the University of Notre Dame Law School. The purpose of the letter appears to be to advocate the addition to the bill of "adequate religious-conscience protections" as proposed by the authors.
Additional evidence cited includes the civil case of Elane Photography v. Willock (N.M. 2d Jud. Dist. Ct).
The letter uses 11 scenarios that the authors see as problematic should the bill become law without "adequate religious-conscience protections". These scenarios cover essentially the full array of current non-discrimination laws on the basis of sexual orientation already codified both in the U.S. Code and the Revised Maine Statutes. These include non-discrimination in: housing, public accommodations, employment, charitable use of government facilities and funding, state and federal licensing laws, professional and medical licensing laws, school accreditation, and tax exempt status for religious organizations.
In each of the 11 scenarios, the authors are asking that the State of Maine modify each of it's non-discrimination laws, these are mostly found under Title 5, Chapter 337: Human Rights Act of the Revised Maine Statues, that protect the rights of persons against discrimination on the basis of sexual orientation. They contend that the concept of marriage between man and woman is so fundamental a religious belief that upholding that tradition is vital to religious freedom, and should take precedence over anti-discrimination laws where two are in conflict, but only as it applies to married couples, not individuals.
The authors include in this definition, in addition to religious organizations; any individuals, small businesses, or professional associations as so-called religious "conscientious objectors." They contend that Maine should do this because, if we don't, those violating the rights of same sex married couples on religious grounds could be sued unfairly simply for adhering to deeply held religious beliefs. However, the basis for these suits originates not under LD 1020, but under the anti-discrimination laws mentioned above that have been on the books for years.
Whether this perceived conflict in civil rights will result in the predicted "flood of lawsuits," no one can know in advance. This by itself, is evidence that the claim may be invalid.
I don't pretend to know the legal implications of a conflict of rights, but fortunately, I don't have to. The fact is, the anti-discrimination laws concerning the legal scholars' various scenarios have nothing to do with LD 1020. If these legal scholars have problems with Title 5, Chapter 337 of the Revised Maine Statutes they need to take their argument there. It has no bearing on LD 1020, and therefore, the scenarios outlined in the letter have no evidential value for predicting the likelihood of lawsuits under LD 1020.
Elane Photography v. Willock illustrates an example of the conflict between the right to religious beliefs and anti-discrimination laws. This case concerned alleged discrimination in the denial of public access to services. The closest approximation of the New Mexico law is found under Title 5, Subchapter 5: Public Accommodations, 5 sec. 4591 of the Revised Maine Statutes. Once again, it has no bearing on LD 1020, and therefore has this case has no evidential value concerning the prediction of LD 1020 based lawsuits.
This claim is deceptive in that it implies that LD 1020 would be responsible for the prediction of a flood of lawsuits. This assertion is made by Prof. Fitzgibbon, and four other legal scholars in the cited letter, lending credibility to the implication to any reasonable viewer. When in fact, the predicted lawsuits are all based on a perceived, but unproven, assertion that a conflict of rights exists, and that the conflict would lead to lawsuits based on current anti-discrimination laws.
Fifth Claim: "Church organizations could lose their tax exemptions."
The evidence in support of this claim:
Prof. Fitzgibbon makes the claim verbally.
The Ad depicts the following imagery:
A sheet of paper where the masthead reads: AP Associated Press. and the headline reads: Homosexual Advocacy Group accuses Maine Diocese of Violating Tax Law.
An animated clip quote crosses the screen bottom to top reading: "its challenge was filed... at an Internal Revenue Service office"
There is a nugget of truth in this claim. Title 26 of the U.S. Code, the Internal Revenue Code does contain rules restricting the political activities of tax-exempt, non-profit organizations; such as churches.
However, LD 1020 has no provision, and the State of Maine has no authority to make laws that either alter the content or enforce the provisions of the Internal Revenue Code. If a church breaks the IRS rules for tax-exempt organizations, they can lose tax-exempt status - whether LD 1020 becomes law or not makes no difference and can make no difference. Further, having identified himself as a law scholar, a reasonable viewer would be more likely to trust the accuracy of Prof. Fitzgibbon's statement over that of a lay-person.
To the best of my knowledge, there are no activity restrictions on the tax exempt status granted to churches under Title 36 of the Revised Maine Statues.
Additionally, though they kept the AP Associated Press masthead in the ad's imagery, evidence shows that the headline may have been altered from the Associated Press article's original headline: Gary Rights Group: Maine Diocese Violating Tax Law to the headline indicated above.
Taken on it's own, out of context, this is a true statement. However, in context, the evidence does not support the claim. Further, the lack full disclosure of the fact that question 1, whether passed or not, has no bearing on IRS rules for tax exempt churches, and lack of any disclosure on the difference between federal and state legal authority on tax laws, by legal scholars, is not only deceptive, it suggests an intent to deceive.
Sixth Claim: "Homosexual marriage will be taught in schools whether parents like it or not."
The evidence for this claim consists of:
Prof. Fitzgibbon makes the claim verbally.
The ad depicts text reading:
"Homosexual
Marriage
Taught in
Schools"
The ad depicts text citing the civil suit, Parker v. Hurley 414 F.3d 87 (1st Cir.2008).
This claim is patently false. The suit cited is based on a Massachusetts law for which Maine has no direct parallel. Not only is there no such provision in LD 1020, but to the best of my knowledge, there is no law in the entire body of the Revised Maine Statutes that mandates any such curriculum be taught in any Maine School. Again, the identification of Prof. Fitzgibbon as a law scholar would tend to increase the credibility to a reasonable viewer.
Taken out of context, this assertion may be arguable, but in no way certain in it's truth - in Massachusetts. In context, and in Maine, it is unequivocally deceptive, and again the lack of full disclosure on differences in state laws, by legal scholars, is deceptive and suggests an intent to deceive.
Just a quick note: The FTC fairness in advertising rules do not apply here in any measurable sense, since they deal with a product's likelihood of harm versus a product's benefits. Any perceived harms or benefits of a political message would be subjective to such an extent that making a harm/benefit analysis would be unusable in any objective sense. Which is a good reason why these particular rules are not applied to political speech. |
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