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Minnesota Administrative Law Judge Rejects Claim that Ads Were False

September 2008

On August 18, 2008, a Minnesota administrative law judge (ALJ) dismissed complaints brought against the Coalition for a Democratic Workplace and Employee Freedom Action Committee and its Minnesota affiliate, Minnesotans for the Employee Freedom, under the state's false political statements act. According to the ALJ, the complaints brought by the head of the Minnesota Democratic-Farmer-Labor Party did not show that a violation of the law had occurred.

Under Minnesota law, it is a misdemeanor to prepare, disseminate or broadcast political advertising or materials with respect to a candidate that are false and either known or should have been known to be false. The complaints in this action alleged that the following constituted false statements: television and newspaper advertisements indicating that Al Franken, a candidate for the U.S. Senate, wants to eliminate the secret ballot for workers by supporting the proposed Employee Free Choice Act, which would allow unions to organize simply by presenting a majority of publicly-signed union cards rather than requiring a secret ballot. Moreover, since the members of the groups that ran the ads were educated and had political backgrounds, the complaints alleged that they either knew or should have known that the statements were false.

The ALJ rejected the complaints' central argument, noting that the state's statute is directed only at false statements of fact, not criticism of candidates or unfavorable deductions based on a candidate's conduct or voting record. Numerous press articles and opinion pieces drew the same conclusion regarding the implications of the Employee Free Choice Act and, therefore, according to the ALJ, ads voicing the same opinions could not be considered false statements of fact. Moreover, the ALJ noted that, even if the ads had been false, because other individuals had drawn the same conclusions about the implications of the Employee Free Choice Act, merely alleging general statements of education and background did not meet the level of recklessness necessary to find probable cause that a violation of the false statements had occurred.

Making an appearance for the Employee Freedom Action Committee and Minnesotans for Employee Freedom was Wiley Rein attorney Thomas Kirby. On pleadings, Mr. Kirby was joined by Wiley Rein attorneys Jan Witold Baran and Caleb P. Burns.