When someone reports a candidate or campaign for making a false statement under Oregon election laws, does the Secretary of State have to investigate?
Plain-English summary
The Elections Division Director asked the AG how to handle a flood of complaints alleging that candidates, ballot-measure committees, or campaign communications had made false statements in violation of Oregon election laws. Three statutes were specifically at issue: ORS 260.532 (false statements of material fact about candidates, political committees, or measures), ORS 260.555 (false statements made in connection with nominating petitions and other formal election filings), and ORS 260.715 (false statements in election-related communications more broadly).
The Director's specific questions were about the Secretary of State's duty: does receiving a complaint trigger an investigation? How thorough does the investigation have to be? Does the Secretary have discretion to decline complaints that seem frivolous or constitutionally protected speech?
Attorney General Hardy Myers's answer was structured. ORS 246.046 directs the Secretary to "obtain and maintain uniformity in the application, operation and interpretation of the election laws," and ORS 260.345 specifically authorizes the Secretary to investigate alleged election-law violations. Read together, those provisions impose a general duty to investigate election-law complaints, including false-statement complaints. The Secretary has substantial discretion to manage that duty: discretion in deciding how to scope each investigation, what investigative techniques to use, how quickly to act, and when to refer to a county district attorney for criminal proceedings. The Secretary is not required to act as a tribunal that finally adjudicates the truth or falsity of contested campaign claims, especially within the context of First Amendment protections for political speech.
The opinion's practical significance was permissive: it gave the Secretary cover to focus investigative resources on serious complaints (sworn statements with documentary support, repeat patterns, deliberate falsity rather than political hyperbole), while declining to mount full inquiries on every routine campaign-season complaint.
Currency note
This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Oregon Supreme Court's election-law jurisprudence has continued to evolve, and several federal-court decisions on state false-campaign-speech statutes (notably Susan B. Anthony List v. Driehaus in 2014) bear on the constitutional landscape.
Common questions
Q: What is the Secretary's underlying duty under ORS 246.046?
A: ORS 246.046 directs the Secretary to "obtain and maintain uniformity in the application, operation and interpretation of the election laws." That includes investigating violations and securing compliance. The statute is general, but it establishes the Secretary as the primary state-level enforcer of Oregon election law.
Q: What is the relationship between investigation and prosecution?
A: The Secretary investigates. The Secretary does not prosecute. Criminal prosecution of election-law violations is the responsibility of the county district attorney where the violation occurred. The Secretary may also impose civil penalties under specified circumstances, separately from criminal prosecution. The investigation feeds either or both tracks.
Q: Does the Secretary have to investigate every complaint?
A: Per the AG's reading, the Secretary has a general duty to investigate, but substantial discretion to scope and prioritize. A complaint that on its face raises a colorable election-law violation should get attention. A complaint that is frivolous, unsupported, or that targets clearly protected speech (opinion, hyperbole, satire) does not require a full inquiry.
Q: What about the First Amendment?
A: The opinion noted that political speech is at the core of First Amendment protection, and that false-statement statutes applied to campaign speech raise serious constitutional questions. The Secretary's discretion includes recognizing that constitutional headwind: not every contested statement is a "false statement of material fact" within the statute, and even those that are may be protected from sanction in some circumstances. The opinion did not adjudicate the constitutional reach of any of the three statutes.
Q: Does the Secretary's investigation determine the truth of a campaign claim?
A: No. The investigation determines whether there is reason to believe a violation occurred, sufficient for civil enforcement or referral for prosecution. Final determinations about the truth or falsity of contested factual statements come from a court adjudicating either a civil enforcement action or a criminal prosecution, with full procedural protections for the speaker.
Background and statutory framework
Oregon's election-law false-statement statutes have a long history. ORS 260.532 prohibits false statements about candidates, political committees, or measures, with civil-penalty consequences for knowing or reckless violations. ORS 260.555 addresses falsity in nominating petitions and other formal election filings. ORS 260.715 sweeps more broadly, reaching false statements in any "communication" intended to influence an election.
Federal and state courts have generally treated political speech, including misleading speech, as deserving of strong constitutional protection. The Supreme Court's 1964 New York Times v. Sullivan line of cases imposes a high actual-malice threshold on defamation actions against public figures, and that doctrine indirectly limits the reach of state false-campaign-speech statutes. The U.S. Supreme Court's 2012 United States v. Alvarez decision (decided after this AG opinion) struck down the federal Stolen Valor Act for criminalizing false claims of military honors, further constraining the use of falsity statutes in protected speech contexts.
The 2008 AG opinion acknowledged the constitutional landscape without trying to draw the line for Oregon's three specific statutes. Its core contribution was to clarify that the Secretary's investigative role is real but discretionary, leaving the office room to develop sensible criteria for which complaints to pursue.
Citations and references
Statutes (as cited in the opinion):
- ORS 246.046
- ORS 260.345
- ORS 260.532
- ORS 260.555
- ORS 260.715
Source
- Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/2008/05/op2008-2.pdf
Original opinion text
HARDY MYERS
PETER D. SHEPHERD
Attorney General
Deputy Attorney General
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
May 13, 2008
John Lindback, Director
Office of the Secretary of State
Elections Division
141 State Capitol
Salem, OR 97310
Re:
Opinion Request OP-2008-2
Dear Mr. Lindback:
You have asked three sets of questions about the responsibility of the Secretary of State
(secretary) to investigate alleged violations of certain election laws that prohibit the making of
false statements.1/ Your questions and our short answers are set forth below, followed by a
discussion of our analysis.
1. ORS 260.532 prohibits promulgating false statements of material fact about a
candidate, political committee or measure. ORS 260.555 and 260.715 prohibit making false
statements in other specified circumstances. What is the scope of the secretary’s duty, if any, to
investigate and take action in response to alleged violations of those statutes?
Short Answer: ORS 246.046 and 260.345 impose on the secretary a duty to conduct
reasonable investigations into allegedly false statements when the alleged misconduct, if proven,
would violate ORS 260.555(1) or 260.715(1). If, after investigation, the secretary determines
that a criminal violation has occurred, the secretary must refer the case to this office and request
prosecution unless the violation involves the Attorney General or a candidate for Attorney
General, or a person or committee supporting or opposing either, in which case the secretary is to
appoint another prosecutor. The secretary has no responsibilities with respect to ORS 260.532.2/
2. False statements could be made in (a) election documents, such as candidate filings,
voters’ pamphlet statements, measure arguments and recall petitions; (b) campaign materials
produced by candidates and political committees, including media advertising; (c) election
coverage by news media; (d) oral communications, such as speeches and conversations; and (e)
government documents, such as ballot titles, explanatory statements, fiscal impact statements,
informational material related to a measure, and legislative arguments supporting or opposing a
legislative referral. Would complaints about false statements in those situations require
investigation and enforcement under statutes within the secretary’s jurisdiction?
1162 Court Street NE, Salem, OR 97301-4096 Telephone: (503) 947-4540 Fax: (503) 378-3784 TTY: (503) 378-5938
John Lindback, Director
May 13, 2008
Page 2
Short Answer: False statements in the described communications could violate ORS
260.555 or 260.715 if the statements are about the contents, meaning or effect of an initiative,
referendum or recall petition and are made to particular individuals by a petition circulator or a
person causing the petition to be circulated, or if the statements are contained in a statement, oath
or affidavit required to be made under the election laws. The secretary would have investigative
and referral responsibilities with respect to alleged violations of either statute. Election coverage
provided by the news media does not appear to come within the scope of either statute.
3. What meaning should be given to “false statement” for purposes of ORS 260.555 and
260.715?
Short Answer: The characteristics of a false statement largely have not been addressed
by Oregon appellate courts with respect to ORS 260.555 or 260.715. We believe that a court
would consider the question of falsity only in relation to statements that represent verifiable
facts, not to statements of opinion, and that a court would conclude that a statement may be
characterized as false only if it is not possible to draw any reasonable inference from available
evidence that the statement is factually correct. Also, with criminal penalties attaching to
violation of these statutes, a person may be found guilty of making a false statement only if he or
she made the statement knowingly, i.e., knowing that it was false.
DISCUSSION
1.
Duty to investigate and take action in response to alleged violations
ORS 260.532(1) addresses the promulgation of false statements of material fact about a
candidate, political committee or measure, and specifically states:
No person shall cause to be written, printed, published, posted, communicated or
circulated, any letter, circular, bill, placard, poster, photograph or other
publication, or cause any advertisement to be placed in a publication, or singly or
with others pay for any advertisement, with knowledge or with reckless disregard
that the letter, circular, bill, placard, poster, photograph, publication or
advertisement contains a false statement of material fact relating to any candidate,
political committee or measure.
A candidate or political committee aggrieved by a violation of ORS 260.532(1) may
bring a civil action in circuit court for compensatory damages and equitable relief. ORS
260.532(5) and (6). ORS 260.532 provides the sole remedy for a violation. ORS 260.532(10);
260.993(1). The secretary has no authority to impose a civil penalty for violations of ORS
260.532, and, because there is no criminal penalty attached to violating the statute, the secretary
lacks authority to refer violations to the Attorney General for prosecution. 42 Op Atty Gen 124,
129 (1981).
You also ask about the secretary’s investigative and enforcement responsibilities under
ORS 260.555(1) and ORS 260.715(1). Like ORS 260.532, both address the making of false
statements. ORS 260.555(1) states:
John Lindback, Director
May 13, 2008
Page 3
No person attempting to obtain signatures on, or causing to be circulated, an
initiative, referendum or recall petition, shall knowingly make any false statement
regarding the contents, meaning or effect of the petition to any person who signs
it, attempts to sign it, is requested to sign it or requests information concerning it.
ORS 260.715(1) states: “A person may not knowingly make a false statement, oath or
affidavit when a statement, oath or affidavit is required under the election laws.”
A fourth statute, ORS 260.345, is relevant to determining the secretary’s responsibilities
with regard to ORS 260.555(1) and 260.715(1). ORS 260.345(3) states:
Upon receipt of a complaint under subsection (1) or (2) of this section [relating to
election law or rule violations] the Secretary of State * * * immediately shall
examine the complaint to determine whether a violation of an election law or rule
has occurred and shall make any investigation the Secretary of State * * *
considers necessary.
If, “after an investigation,”3/ the secretary believes there has been a statute or rule
violation, ORS 260.345(4) provides for only two courses of action.4/ If the violation is subject to
a criminal penalty, the secretary must refer the matter to the Attorney General for prosecution
unless the violation involves the Attorney General or a candidate for Attorney General or a
person or committee supporting or opposing either, in which case the secretary is to appoint
another prosecutor. ORS 260.345(4)(a); 260.993.5/ Because the violation of either ORS
260.555(1) or ORS 260.715(1) is a Class C felony, ORS 260.993(2), the investigative and
referral responsibilities imposed on the secretary under ORS 260.345 apply to complaints that
the secretary receives about alleged violations of either statute. Moreover, if the secretary does
not receive a complaint but nonetheless has “reason to believe that a violation of an election law
or rule has occurred,” the secretary is obligated to “proceed promptly as though * * * [he] had
received a complaint.” ORS 260.345(8).
In addition to the responsibilities imposed under ORS 260.345, the secretary has a duty to
investigate election law violations under ORS 246.046, which states:
The Secretary of State and each county clerk shall diligently seek out any
evidence of violation of any election law.
The secretary’s investigatory obligations under this statute appear to differ very little from those
imposed by ORS 260.345.6/ A distinction could be drawn based on the proactive nature of the
secretary’s charge under ORS 246.046 to “seek out” evidence of violations.7/ We have
previously interpreted this provision as requiring the secretary “to investigate any irregularities in
the election laws and where such investigation produces sufficient facts to convince
[the secretary] that a violation has occurred such facts should be brought to the attention of the
appropriate district attorney.”8/ 30 Op Atty Gen 76 (1960) (construing former ORS 260.540,
now codified at ORS 246.046). We further concluded that the secretary’s responsibility to
investigate in any particular case depends on the facts of that case and that the phrase
John Lindback, Director
May 13, 2008
Page 4
“‘diligently seek out evidence’ is a relative term, the requirements of which vary from case to
case within the demands of reasonableness.” Id.
In determining whether an investigation is reasonable under the circumstances, we
believe the secretary may take into consideration such matters as the investigative resources
available to the secretary and the likelihood of a successful enforcement action. Thus, if initial
review of a complaint is sufficient for the secretary to conclude that a reasonable investigation of
the stated allegation probably will not yield proof of a violation of an election law enforced by
the secretary, we believe the secretary may forego any investigation. Likewise, if during an
investigation it becomes evident that the investigation probably will not yield sufficient proof of
a violation for which the secretary has enforcement authority, the secretary may, and in most
instances should, discontinue the office’s investigative efforts.
Despite the broadly stated obligations placed on the secretary by ORS 260.345(3) and
246.046 to investigate possible election law violations, we conclude that neither statute requires
the secretary to investigate complaints of alleged violations of ORS 260.532(1).9/ The reason for
this is that the remedies stated in ORS 260.532, permitting an aggrieved candidate or political
committee to bring suit, are the exclusive remedies for violation of ORS 260.532(1). ORS
260.532(10). Because there is no remedy to be pursued by a government entity, there would be
no way for the state to act on the results of the secretary’s investigation. Therefore, if it is clear
from the face of a complaint, or if it becomes clear during the course of an investigation, that an
allegedly false statement could only constitute a violation of ORS 260.532(1), the secretary may
determine that no further investigation is “necessary” within the meaning of ORS 260.345(3),
and, likewise, discontinue any investigation begun under ORS 246.046. However, if the alleged
misconduct would also violate a law for which the secretary does have enforcement or referral
authority, the secretary has a duty to investigate the complaint to the extent reasonably necessary
to enable the secretary to determine whether there has been such a violation. See 42 Op Atty
Gen at 132 n 3 (conduct violating ORS 260.532 may also violate other election laws).
2.
False statements in particular communications
The second question requests guidance about how to determine when the secretary has a
statutory obligation to investigate complaints and take further action based on allegedly false
statements made in the following communications: (1) election documents such as candidate
filings, voters’ pamphlet statements, measure arguments and recall petitions; (2) campaign
materials produced by candidates and political committees, including media advertising; (3)
news media statements; (4) oral communications; (5) government documents such as ballot
titles, explanatory statements, fiscal impact statements, informational material related to a
measure, and legislative arguments.
To answer this question, we consider the secretary’s responsibilities upon receiving a
complaint about allegedly false statements that would violate either ORS 260.555(1) or
260.715(1), the primary statutes concerning false statements for which the secretary has
enforcement obligations.10/ As already discussed, the secretary is not responsible for enforcing
ORS 260.532. Therefore, while false statements made in the types of communications that you
have specified would likely violate that statute, we do not discuss those violations.
John Lindback, Director
May 13, 2008
Page 5
a. ORS 260.555(1) (false statements regarding initiative, referendum or recall
petition)
As already discussed, ORS 260.555(1) prohibits the chief petitioner or any individual
who circulates an initiative, referendum or recall petition from knowingly making false
statements concerning its contents, meaning or effect to any person who signs, attempts to sign
or is requested to sign, or who requests information about the petition. Among the means by
which a false statement could be transmitted, you ask about “campaign materials * * * including
media advertising * * * [and] oral communications, such as speeches and conversations.” With
regard to oral communications, it would constitute a violation of ORS 260.555(1) for a petition
circulator to knowingly make a false statement in discussing the petition with a person who may
sign or ask for information about the petition.
A petition circulator also may violate the statute by distributing campaign materials that
he or she knows contain a false statement about the contents, meaning or effect of the petition to
a person who signs, attempts to sign, is requested to sign or requests information about the
petition. Likewise, we believe that a chief petitioner could violate the statute by providing
campaign materials to the circulator for distribution, knowing that they contained the false
statement. The distributed campaign materials could be reproductions of materials originally
disseminated in a speech or via media advertisement. However, false statements made in media
advertising or speeches to groups could potentially violate ORS 260.555(1) only if the
advertising or speech itself included a request to the listeners, readers or viewers to sign the
subject petition. Because a violation of ORS 260.555(1) in such a circumstance would be very
dependent on the facts of the specific situation, we recommend that the secretary consult with the
Department of Justice in the event he becomes aware of a potential violation occurring in such a
setting.
The election and government documents described in this question generally relate to
candidates and measures before the voters, rather than petitions. Because these communications
generally are not directed toward petition signers or potential signers and do not deal with the
content, meaning or effect of petitions, we believe they are unlikely to present a possible
violation of ORS 260.555(1). Finally, although the news media may issue statements advocating
support or rejection of a petition, they generally are not actively involved in circulating or
gathering signatures on the petition. Thus, news media statements also are unlikely to violate
ORS 260.555(1).
The secretary has a statutory duty to conduct a reasonable investigation of any complaint
alleging a violation of ORS 260.555(1). ORS 246.046, 260.345(3). If, based on the
investigation, the secretary concludes that there has been a violation, the secretary must refer the
case to the Attorney General and request prosecution, or appoint another prosecutor if the
violations involve the Attorney General. ORS 260.345(4)(a).
John Lindback, Director
May 13, 2008
Page 6
b. ORS 260.715(1) (false statement required under the election laws)
ORS 260.715(1) applies only to statements, oaths and affidavits that are provided in
response to an election law requirement. Thus, oral communications and news media
communications will not violate ORS 260.715(1).
The election documents, campaign materials and government documents described in this
question may include some statements that are required under the election laws. See, e.g., ORS
249.031 (contents of nominating petition or declaration of candidacy), 250.045(4) (statement
regarding payment of petition circulators), 251.085 (required portion of candidate’s statement in
voters’ pamphlet), 260.039 (candidate’s statement of organization), 260.042 (political
committee’s statement of organization), 260.044 (statement of expenditures), ORS 260.058,
260.063, 260.068 and 260.073 (candidate and PAC statements of contributions and
expenditures), Or Const, Art II, § 18(3) (reasons for recall petition). A person who knowingly
includes a false statement of fact in any such required statement, oath or affidavit would violate
ORS 260.715(1). The secretary has a statutory duty to conduct a reasonable investigation of any
complaint alleging a violation of ORS 260.715(1) with regard to these communications. ORS
246.046, 260.345(3). If, based on the investigation, the secretary determines that a violation has
occurred, the secretary must refer the case to the Attorney General and request prosecution, or
appoint another prosecutor if the violations involve the Attorney General. ORS 260.345(4)(a).11/
3.
Meaning of “false statement”
The third question asks how the secretary should interpret the term “false statement” in
ORS 260.555(1) and 260.715(1). As already discussed, the legislature has provided criminal
penalties for the violation of these statutes, distinguishing them from ORS 260.532.12/ While
only one case speaks to what constitutes a “false statement” for purposes of ORS 260.715, State
v. Huntley, 82 Or App 350, 356, 728 P2d 868 (1986), and no case addresses the point with
respect to ORS 260.555, Oregon appellate courts have had numerous occasions to consider what
constitutes a “false statement” in the context of ORS 260.532. Although these precedents do not
necessarily reflect how the courts would interpret either criminal statute, we believe that they
provide some basic guidance as to the courts’ consideration of false statements. Therefore, we
draw on them in answering this question. Under ORS 260.532(1), the Oregon Supreme Court
has consistently held that statements are not false “if any reasonable inference can be drawn from
the evidence that the statement is factually correct or that the statement is merely an expression
of opinion.” Comm. of 1000 v. Eivers, 296 Or 195, 202, 674 P2d 1159 (1983), see also
Thornton v. Johnson, 253 Or 342, 362, 453 P2d 178, 454 P2d 647 (1969), Mosee v. Clark, 253
Or 83, 87, 453 P2d 176 (1969). Although the Court’s conclusion in these cases does not control
interpretation of ORS 260.555(1) or 260.715(1), we believe it unlikely a court would find
evidence of falsity sufficient to prove violation of ORS 260.555(1) or 260.715(1) if any
reasonable interpretation or inference of fact would make the statement true, or would show the
statement to be one of opinion rather than fact.
Also, under both ORS 260.555 and 260.715, a person is criminally liable for making a
false statement only if he or she made the statement “knowingly,” i.e., with knowledge that the
statement was not true. It would not be sufficient to prove that the person should have known
John Lindback, Director
May 13, 2008
Page 7
that the statement was false. See State v. Neel, 8 Or App 142, 493 P2d 740 (1972) (to prove
“knowingly” the state must prove actual knowledge). The Oregon Court of Appeals has held
that a person who makes a false statement while being “unsure about the truth or falsity” of the
statement or only having had “reason to know” that the statement was false, has not knowingly
made a false statement for purposes of the perjury statute.13/ State v. Park, 120 Or App 294,
297-298, 852 P2d 872 (1993). However, in Park, the court also concluded that a person’s
knowledge of the falsity of his statement could be inferred from the evidence presented by the
state. Id. at 298. This means that the state can use circumstantial evidence to prove a person
knew the statement he or she made to fulfill an election law requirement was false. In practice,
the question of whether a particular statement is a “false statement” is likely to hinge upon the
strength of the state’s evidence that the person who made the statement knew that it was false.
A few examples may be helpful in understanding the elements of a false statement. The
statements in the left hand column may qualify as false statements for purposes of ORS 260.555
and 260.715, while the statements in the right hand column could not:14/
May qualify as a false statement
Could not qualify as a false statement
“The office holder is a convicted felon”
“The office holder is corrupt”
“The candidate voted against Senate Bill 99”
“The candidate does not support education”
“The petitioner has never held public office”
“The petitioner doesn’t know anything about
politics”
To summarize, a “false statement” for purposes of ORS 260.555 and 260.715 is one
purporting to be a statement of fact that is not susceptible to being reasonably interpreted as true
or as an opinion. The person making a false statement is criminally liable only if he or she
makes the statement knowing it to be false.
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division
DCA:DNH:naw:mcg/GEN308554
1/
You have asked for confidential advice on a related question, which we address in a second
letter.
2/
The secretary may wish to consult this office if he has questions about other statutes
prohibiting false statements in the election context. For example, ORS 260.695(8) prohibits any person
from making a false statement about the person’s inability to mark a ballot.
John Lindback, Director
May 13, 2008
Page 8
3/
As the attorney for the secretary, the Attorney General may assist with whatever investigation
the secretary considers necessary.
4/
While ORS 260.345(3) imposes on the secretary the responsibility to “make any investigation”
he considers necessary in relation to a complaint that a person has violated an election law or rule, the
statute does not specify the factors to be considered in determining whether an investigation is
“necessary.”
5/
If the violation is not subject to a criminal penalty, the secretary must determine whether to
impose a civil penalty. ORS 260.345(4)(b); 260.995.
6/
As originally enacted in 1957, the predecessor statute to the current ORS 260.345 pertained
only to violations arising under a prescribed set of statutes, all of which pertained to the filing of
statements about campaign finances, while the statute that preceded the current ORS 246.046 applied to
“any” violation of “any provision of the election laws.” Or Laws 1957, ch 643 § 1 and ch 644 § 10.
7/
With neither statute currently limiting the secretary’s investigatory activities to specific types
of violations, the substantive difference between the investigatory duties imposed on the secretary by
ORS 246.046 and 260.345 is, if anything, one of degree.
8/
Before 1971, district attorneys were responsible for prosecuting election law violations.
Former ORS 260.540. The 1971 Legislative Assembly transferred that authority to the Attorney General.
Or Laws 1971, ch 749, §§ 27- 28.
9/
This conclusion is consistent with those stated in 42 Op Atty Gen 124.
10/
An analysis of all potential circumstances that may appear to be based on false statements in
the communications described in this question is outside the scope of this opinion. The secretary may
wish to consult this office for guidance in applying the principles addressed in this opinion to specific
factual situations.
11/
ORS 260.345(4) provides:
If the Secretary of State believes after an investigation under subsection (3) of this
section that a violation of an election law or rule has occurred, the secretary:
(a) In the case of a violation that is subject to a penalty under ORS 260.993,
immediately shall report the findings to the Attorney General and request
prosecution. If the violation involves the Attorney General, a candidate for that
office or a political committee or person supporting or opposing the Attorney General
or a candidate for that office, the Secretary shall appoint another prosecutor for that
purpose; or
(b) In the case of a violation not subject to a penalty under ORS 260.993, may
impose a civil penalty under ORS 260.995.
John Lindback, Director
May 13, 2008
Page 9
12/
While the Oregon Supreme Court has termed ORS 260.352 a “penal statute,” its violation
does not carry a criminal penalty. Mutual of Enumclaw Ins. Co. v. McBride, 295 Or 398, 405, 667 P2d
494 (1983).
13/
The Court of Appeals has concluded that a criminal prosecution under ORS 260.715(1) is a
variant of a prosecution for perjury. Huntley, 82 Or App at 356. In that case, the defendant candidate for
state office was convicted of making false statements in the material he submitted to the Secretary of
State for publication in the Oregon Voters’ Pamphlet. In describing his educational background, the
defendant had listed two college degrees that he, in fact, had not received. Huntley, 82 Or App at 352.
14/
These examples are intended to provide general guidance for determining whether a statement
is one of fact or opinion. We recognize that in some cases it may be difficult to distinguish between a
statement of fact and an opinion. If there is substantial doubt as to the nature of a particular statement, the
statement generally should be treated as one of opinion rather than fact. For advice in specific cases, we
recommend that the secretary consult this office.