Political operative says phony concession email was satire

Monitor staff
Friday, April 15, 2016

The phony press release sent days before a special election last year – purporting to be a concession from the young Republican in the race – was a form of political satire, according to its author’s attorney.

The email got Concord-based liberal activist Carl Gibson charged with two crimes, a misdemeanor and a felony. But it’s no different from what happens each day at The Onion, a self-proclaimed “farcical newspaper,” or in last Sunday’s Boston Globe, defense attorney Mike Iacopino told a Merrimack County Superior Court judge Monday.

Gibson wrote that the 19-year-old Republican Yvonne Dean-Bailey was dropping out to focus on her studies at college. That’s protected speech, Iacopino said, because anyone fact-checking the announcement would have gotten in touch with Dean-Bailey and “probably would have had a conversation about, ‘How are you going to do this job if, in fact, you get elected? You’re a college student. You have other obligations.’ ”

The attorney general’s office, which obtained indictments against Gibson in October, disagrees. Gibson is charged with trying to suppress voter turnout in the special election held last May in Rockingham County’s 32nd district, a felony, and that he knowingly signed someone else’s name to a false document, a misdemeanor. Dean-Bailey won the election five days after the email was sent.

Iacopino said the charges, as applied in this case, tread on First Amendment protections, which include false speech.

“It’s clearly a type of speech, just like in The Onion . . . that is protected, even though we might not like it, even though you might think it’s underhanded, even though you might think that it’s morally wrong. It’s still protected by the First Amendment,” he said.

Anyone who writes under a pen name, he added, is guilty of the false documents charge. The case presents an issue of first impression in New Hampshire, he said.

Judge Richard McNamara took the argument under advisement as he considers Iacopino’s motion to dismiss the charges.

Assistant Attorney General Stephen LaBonte said the email was sent to illegally influence and suppress votes, and the laws in question regulate conduct, not speech. If it had been sent after polls closed, there would have been no problem, he said.

“It’s not only providing false information. It’s providing it for the purpose of either to suppress votes or to influence votes. That’s where the crime is committed. It’s conduct-based,” he said.

The judge attempted to follow each side’s logic by presenting hypothetical situations. He said the state could put itself in a difficult position when it calls certain types of false political speech criminal.

“As soon as you decide to pick one of these things, you’re going down the road of picking winners and losers and deciding what’s false and what’s not false – and then deciding to punish them,” McNamara said.

In this case, he said, “I understand the facts are compelling, but there’s the First Amendment out there, and the overbreadth issue.”

McNamara said the issue is complicated and asked whether the attorneys want to bring their arguments directly to the state Supreme Court.

Iacopino said that’s a conversation he’d have with his client outside the courtroom.

About a month before he sent the email, Gibson was booted from his volunteer position working for the Democrat in the State House race, Maureen Mann.

He said in an interview after his name was discovered in the electronic properties of a file attached to the email that he “probably had one too many beers” before he sent it. He considered it a “prank,” he said.

“I thought it was funny. I didn’t really think it would be taken seriously,” he said at the time.

(Nick Reid can be reached at 369-3325, nreid@cmonitor.com or on Twitter at @NickBReid.)