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December 29, 2010

Operative says robocalls protected by Constitution

Election Night robocalls that drew a federal civil complaint and the attention of Maryland’s state prosecutor in a criminal investigation are Constitutionally protected free speech, the lawyer for political operative Julius Henson says a motion to dismiss the case.

Henson, who worked for Republican former Gov. Robert L. Ehrlich Jr. at the time, has acknowledged ordering the calls, which told voters to “relax” because Democratic Gov. Martin O’Malley had “been successful” and that “the only thing left to do is watch it on TV tonight.”

Maryland Attorney General Douglas F. Gansler, who filed the civil suit in November, alleges that the calls were made with the intent of suppressing and intimidating voters in predominantly African-American areas. Gansler’s civil complaint against Henson, his company Universal Elections and his employee Rhonda Russell seeks millions of dollars in fines.

Gansler said 112,000 calls went out that night before the polls closed, and if they are found to be violations, each carries a $500 fine.

In a memorandum supporting the motion to dismiss, filed Tuesday in federal court, the attorney for the defendants, Edward Smith Jr., writes that nothing about the content of the calls was untrue and that the message, which “gave no command, inspired no fright,” is protected by the First Amendment.

O’Malley defeated Ehrlich by more than 14 percentage points.

“The damage promoted even to deceptive political speech is far greater than the evil that it seeks to prevent,” Smith writes about the civil complaint against his clients. An earlier motion to dismiss the case claims the federal court lacks jurisdiction and cites other technical issues.

Gansler had not reviewed the latest motion, his spokeswoman said Wednesday. Smith could not be reached for comment.

Posted by Julie Bykowicz at 7:11 PM | | Comments (7)
Categories: Maryland election 2010


Mr. Smith needs to understand that while free speech is guaranteed by the First Amendment, there are reasonable limits to what consistutes "free speech." In this case, his client clearly overstepped the bounds. Any action that adversely affects the duties of citizens to participate in an election is forbidden. This is one more lawyer who obviously doesn't understand the Constitution.

Don't the votes have to be counted before a winner is declared?

I think the telemarketing laws need to be updated to prohibit ALL robocalls. Now businesses are using them; you can't tell a recording to take you off its list, and you get the same calls over and over. I keep getting deceptive ones that souns ominously real:- "This is a call concrning your electric bill. Please call as as soon as possible at 1-800--blah blah blah. When you DO call it's an "optional" electricity source "making sure" you know that you can choose a different provider than the one you have. The recording, on the other hand, makes it sound like your electricity is going to be cut off. Same with credit cards and mortgages. Who's running this asylum - the patients?

I find it amazing that political people that have so much disregard for the Constitution in their everyday activities always seem to fall back on that document when their unethical behavior spills over into criminal. If that lawyer truly believes his asinine argument he should be disbarred.

The Constitution gives Bob Ehrlich the right to commit voter fraud?

I suspect that considering the time the calls went out and the margin of votes that O'Malley won by, every word in the call was true. Mr. Gansler seems to be "hot to trot" on this issue, but where has he been regarding the garbage sent out by other political campaigns, like the ones in Baltimore County?

So was it a crime for the O'Malley supporters and Democrats to plaster signs around Baltimore and PG County saying "Vote for Obama"? I saw a dozen of these signs in those areas of the state. Basically, the intent of the people who put these signs out was to trick blacks to come out and vote b/c Obama was on the ballot (he was not, obviously).

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About the bloggers
Annie Linskey covers state politics and government for The Baltimore Sun. Previously, as a City Hall reporter, she wrote about the corruption trial of Mayor Sheila Dixon and kept a close eye on city spending. Originally from Connecticut, Annie has also lived in Phnom Penh, Cambodia, where she reported on war crimes tribunals and landmines. She lives in Canton.

John Fritze has covered politics and government at the local, state and federal levels for more than a decade and is now The Baltimore Sun’s Washington correspondent. He previously wrote about Congress for USA TODAY, where he led coverage of the health care overhaul debate and the 2010 election. A native of Albany, N.Y., he currently lives in Montgomery County.

Julie Scharper covers City Hall and Baltimore politics. A native of Baltimore County, she graduated from The Johns Hopkins University in 2001 and spent two years teaching in Honduras before joining The Baltimore Sun. She has followed the Amish community of Nickel Mines, Pa., in the year after a schoolhouse massacre, reported on courts and crime in Anne Arundel County, and chronicled the unique personalities and places of Baltimore City and its surrounding counties.
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