Massachusetts Supreme Court Strikes Down Unconstitutional Law Restricting Political Speech

from the and-The-Man-shows-up-to-declare-the-law-perfectly-fine! dept

If anyone thought a bad law was going to keep Massachusetts' politics out of the mud, the state's Supreme Court has given campaigning parties official permission to get waste deep in the sludge.

The law in question seemed like a good thing -- an attempt to put political campaigning on higher moral ground. The problem is that it criminalized protected speech. So, even if you were won over by more polite politicking, the 1946 statute that made it a criminal act to publish certain false statements about political candidates was the sort of the sort of law that lends itself to abuse far worse than the lying it was put in place to prevent.

The origin of the court's unanimous overturning of the 1946 statute was a flyer published by a political action committee about an opponent. It included these phrases:

"Brian Mannal chose convicted felons over the safety of our families. Is this the kind of person we want representing us?";

"Helping Himself: Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals. Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders"

"Brian Mannal is putting criminals and his own interest above our families."

Mannal was unhappy with the PAC's statements, so he invoked the nearly-seventy-year-old law to shut down his critics. He filed a criminal complaint and -- as one does in his position -- followed it up with a press conference stating his desire to put the author (Melissa Lucas) "behind bars." Lucas challenged both the charges and the law itself. As Lucas noted in her filings, Mannal's actions had chilled her protected speech by making any further statements from the PAC on Mannal possibly subject to additional criminal charges.

The state entered its own motions in the case, asking for the court to bypass discussion of the constitutionality of the statute. The court, fortunately, declined to do so. It notes in its opinion that ignoring this important question would only lead to further abuse of a questionable law.

The Commonwealth recites the familiar rule that we decline to consider the constitutionality of a statute that does not criminalize a defendant's conduct. See, e.g., Commonwealth v. Robertson, 467 Mass. 371, 381 (2014). Yet, in some contexts, resolving a case on narrower grounds may serve to perpetuate the chilling of speech protected by the First Amendment to the United States Constitution and art. 16, as amended by art. 77 of the Amendments.

As it points out, the constitutionality of this law is especially germane, given the type of speech it aims to restrict.

Assuming, arguendo, that § 42 proscribes only statements of fact as opposed to opinion and the statements at issue constituted opinion, a political candidate was nonetheless able to use those statements as the basis for an application for a criminal complaint (and ultimately for its issuance). The candidate then used the application as a political tool not only to discredit the statements but also to persuade the PAC to refrain from airing a political advertisement shortly before the election. Although Lucas filed a motion to dismiss the application, Mannal already had won the election by a narrow margin by the time of the probable cause hearing. Thus, even if the application had been dismissed, the damage was already done.

Dodging the constitutional question (as requested by the state) would only result in exactly this sort of thing returning to the courts in perpetuity, with no resolution in sight.

Importantly, this precise scenario is capable of repetition yet constantly evading review on the Commonwealth's theory that § 42 does not apply to the particular facts of a given case. This is so because anyone may initiate a complaint under § 42 and, in so doing, create lingering uncertainties of a criminal investigation and chill political speech by virtue of the process itself.

The decision points the state towards other legal remedies for noxious campaigning that would not tread on areas of protected speech, like fraud and defamation statutes. There's no reason for this particular law to exist when other remedies are available to handle unprotected speech. And, as for the protected speech, it can easily be countered by remedies available to every candidate from every party.

[T]he Commonwealth has not established that § 42 actually is necessary to serve the compelling interest of fair and free elections. Suppose, for example, that a candidate makes the following false statement at a pre-election debate: "I received the Congressional Medal of Honor." This constitutes (1) a false statement, (2) made about a candidate, (3) designed to aid that candidate win an election, and therefore a crime pursuant to 21 § 42. Such a result raises serious doubts about the constitutionality of § 42 in light of Alvarez, 132 S. Ct. at 2551 (striking down on First Amendment grounds Federal statute criminalizing false Medal of Honor claims). Alvarez teaches that the criminalization of such falsehoods is unnecessary because a remedy already exists: "the simple truth."

Furthermore, political figures generally have any number of outlets available to them to address false statements made by opponents -- more so than the average citizen. The court says what any good free speech advocate would when presented with the suppression of protected speech simply because Party A doesn't like what Party B says:

Courts in other jurisdictions have applied this same principle to conclude that statutes broadly suppressing false statements about candidates or ballot questions cannot withstand strict scrutiny for the simple reason that "[o]ur constitutional election system already contains the solution to the problem that [such statutes are] meant to address." Rickert v. Public Disclosure Comm'n, 161 Wash. 2d 843, 855 (2007) (en banc). That solution is counterspeech.

Attempting to lock up a political opponent isn't counter-speech. It's wielding the government's power for proxy censorship. And as such, this statute can't live up to the state's own Declaration of Rights, much less the First Amendment.

We conclude that § 42 cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the Commonwealth's interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system. For all of these reasons, we hold that § 42 is antagonistic to the fundamental right of free speech enshrined in art. 16 of our Declaration of Rights and, therefore, is invalid.

It's a solid win for speech, which means politicking in the state may now be uglier than it used to, but only in terms of words, rather than attempts to lock up political opponents. The word "politician" is often synonymous with "liar," so it's rather surprising this statute made it all the way to 2015 before being struck down. Legislators aren't really known for humoring laws restricting their words or deeds.

That the state would speak up in an effort to retain its power to limit the speech of its citizens is incredibly disheartening. Was it just putting up token resistance to maintain some sort of prosecutorial street court cred? Or did it truly want an unconstitutional law to remain unexamined, and allow its citizens to face potential jail time for certain kinds of political speech? Either way, it acted as an apologist for a truly terrible law and its terrible arguments in favor of limiting political speech are now part of its permanent record.

Filed Under: free speech, massachusetts, political speech