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Posted at 4:14 PM ET, 12/29/2010

'Dirty tricks' are free speech, Henson's lawyer argues

By John Wagner

Thumbnail image for Henson.jpgEven political "dirty tricks" are free speech.

That, in essence, is part of the defense put forward in recent court filings by a lawyer for Julius Henson, the political consultant behind tens of thousands of anonymous election-night robocalls in Maryland.

Henson, who was being paid by former governor Robert L. Ehrlich Jr. (R), has taken responsibility for the calls, placed before the polls closed Nov. 2. Recipients were told they could "relax" because Gov. Martin O'Malley (D) had already been "successful."

"The damage promoted even to deceptive political speech is far greater than the evil it seeks to prevent," Henson's lawyer, Edwards Smith Jr., argues in a motion to dismiss a civil case brought in federal court by Maryland Attorney General Douglas F. Gansler (D).

Gansler alleges that more than 112,000 robocalls, many of them placed to Democrats in Prince George's County and Baltimore, were designed to suppress the vote and violated the federal Telephone Consumer Protection Act.

In one court filing this week, Smith argues that the federal law violates the First Amendment of the U.S. Constitution, which protects free speech.

"The so-called 'dirty tricks' of politics have been well-known to the body politic of the United States of America," the filing says. "Not only discrediting tactics, but voter psychological manipulations have been allowed in the media since the early 1960s to the present day. While the practices are certainly of questionable ethical techniques, they nevertheless provide for robust debate and decisions to be made by the electorate, who as citizens are responsible for their individual vote. ... Government should not regulate political messages for truthfulness."

As for the message in question, Smith argues, "the voter was free to apply his/her common sense, intelligence and savoy (sic) to come to a conclusion."

The Office of the Maryland State Prosecutor, which has jurisdiction over criminal election-law violations, is also looking into the episode.

Ehrlich has said he was not aware of the calls and does not believe robocalls are effective.

By John Wagner  | December 29, 2010; 4:14 PM ET
Categories:  2010 Elections, John Wagner  
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Comments

Notice how no one is even interested in reading or commenting on this story? I never got any robo calls. None of any of my friends did either?

Posted by: CountytaxpayingCHNII | December 31, 2010 12:30 PM | Report abuse

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