NES Response to Fair Elections Complaint Filed 9-28 KPFA


The complainant wishes to be anonymous. The complainant alleges that an email purportedly sent to the KPFA local station board closed email list violated the fair campaign rule #6 which prevents libel and slander against a candidate. The email was sent by candidate Steve Zeltzer and related to the proposed bylaws amendment petition sent out by the Pacifica Restructuring Project. The complainant alleges that the closed LSB message was libelous or slanderous towards delegate candidate Akio Tanaka, who is a signed member of the Pacifica Restructuring Project. The email, a copy of which was not provided, is reported to have said:

“The nine authors of the petition, by their own statements & public associations, are the latest expression of those who work to break up Pacifica, destroying the network.”

The complainant alleges the above statement is libelous or slanderous because candidate Tanaka states in his candidate statement that:

“I have been a believer of {sic} the network since 1970, and served as the PNB Secretary in 2017”.

Discussion: Before we discuss this, we need to make a disclaimer that the anonymous complainant did not provide a copy of the email supposedly sent to the KPFA LSB closed list-serv. It is incumbent upon complainants to document their complaints, especially when they are referring to a closed list-serv which the NES has no access to. While we are adjudicating the complaint as if it were true, no enforcement action, if any were called for by the merits of the complaint, would be possible without evidence of the violation that is being alleged.

We will begin by addressing the complainants stated description of the violation they claim occurred. Our belief is that a valid complaint would be based on another election rule entirely, so later in the discussion we will pivot to what we believe the valid basis for a complaint would hsve been and address that as well.

The complainant alleges a violation of Rule #6. Rule #6 says:

The Foundation and stations will not allow the expression of libelous or slanderous statements about candidates through any of its resources, whether on-air, web sites, or otherwise.

As we have stated several times, the definition of libel and slander is as follows:

The action or crime of making a false spoken statement damaging to a person’s reputation.

So the question is whether the statement “The nine authors of the petition, by their own statements & public associations, are the latest expression of those who work to break up Pacifica, destroying the network.” is a) false and b) damaging to a person’s reputation.

On the first prong of falsity, it is not false to say that some of the nine authors of the petition have issued public statements advocating for the break-up for the Pacifica station. Such statements have been publicly distributed.

Since candidate Zeltzer phrases his statement as saying that the nine authors have either made statements to that effect or are publicly associating themselves with people who have made public statements to that effect, his statement is not false. It is not a false statement to say that candidate Tanaka is publicly associating himself with people who have made statements advocating for the break-up of the Pacifica network. Therefore, the libel and slander complaint fails on the first prong of falseness and we do not need to discuss the second prong of whether or not the statement is damaging to a person’s reputation.

We note that the anonymous complainant has brought several complaints of slander or libel against candidates not of their preferred slate. We ask the complainant to review their understanding of libel and slander to avoid filing repeated complaints that invoke those terms without merit. Statements with which one personally disagrees do not constitute libel or slander.

The campaign rule the complainant could have invoked and did not is rule #3 which states:

Endorsement emails (web-based & list-serve) are permitted only if the email addresses were not gathered by the use of any station resources or web site.

An LSB list-serv is a station resource and arguably candidate Zeltzer’s email was intended as a non-endorsement of candidate Tanaka, although it did not directly say so. The email did not contain a disclaimer, and while the efficacy of an endorsement email sent to only 24 people, all of whom know the candidates in question personally is debatable, arguably it constituted the use of a station e-mail list serv to non-endorse a candidate.

The problem with the position is that the Pacifica Restructuring Project chose to distribute to every member a petition in the middle of the election period. This action, both by intent and by practical effect, invited dialogue and obligated sitting KPFA LSB members who would be asked to vote on such a proposal to both respond to member questions and concerns about the proposed amendment and to discuss it among themselves on vehicles such as the closed LSB list-serv. It is in fact the duty of members currently in governance to discuss such a matter, both among themselves and with the broader Pacifica community. Thus the duty of care for sitting members of board committees like the KPFA LSB directly conflicts with the fair campaign rules. 

In the case of such a direct conflict, the California Corporations Code requirement of a duty of care have jurisdiction over the fair campaign rules. We cannot prevent sitting board members from free and open discussion of proposed bylaws amendments sent out as a member petition. We respond that the Pacifica Restructuring Project should not have sent out their membership petition in the middle of the election period if they wished to invoke the campaign rules to prevent sitting members of the local station board from discussing the proposed bylaws amendment among themselves.

Ruling: The complainant’s allegation of libel and slander has no merit based on the claim lacking falseness. The use of a closed LSB list to discuss a membership petition to change the bylaws is permitted by the California Corporations Code.