By: David Schlosser

Over the summer of 2015, a Massachusetts law banning lying in campaign ads was struck down by that state’s highest court. This decision mirrors that of an Ohio federal judge last year, a case previously covered on this blog by Sarah Wiley. Like the Ohio law, the Massachusetts law criminalized telling lies about candidates for political office, and was as on the books for several decades before being successfully challenged in court. The lawsuit arose when a Democratic state representative alleged that a right-leaning PAC lied in a campaign brochure. The brochure in question alleged that Rep. Brian Mannal sponsored a bill that would “help convicted sex offenders” because he—as a defense attorney who had represented sex offenders in the past—stood to profit. Mannal maintained that he never provided legal representation to sex offenders. One of the bills in question would make GPS tracking devices optional for sex offenders on parole, rather than mandatory. After filing the bill in 2013, Mannal reported that he received death threats.

Supporters of striking down the bill included Harvard Law School’s Cyberlaw clinic, the American Civil Liberties Union and the Cato Institute, all of which submitted amicus curiae briefs. The Cato Institute noted similarities between the Massachusetts law and the infamous Alien and Sedition Acts of John Adams’ presidency, which banned false speech critical of the federal government. They also noted that Mannal chose to attack his defamers in court rather than attempt to disprove the accusations publically. Commentators also noted the similarities between this case and the case of U.S. v. Alvarez, a U.S. Supreme Court case from 2012 that struck down the Stolen Valor Act—which criminalized false statements about having a military medal—as unconstitutional.   

Following the Supreme Judicial Court’s opinion, Massachusetts sought to avoid prosecuting the PAC on criminal grounds while avoiding the question of the constitutionality of the statute. Massachusetts reasoned that because the statements made in the brochure were not actually false, the complaint could be dismissed under the statute itself. That statute criminalized only false campaign statements, not critical campaign ads generally. The court was unconvinced by this argument. According to the court, as long as this law remained on the books, candidates would be able to continue to use litigation to attack opponents they maintained made false statements. So, it would be best to settle the question of the law’s constitutionality now, lest candidates continue to use the law as a weapon while its constitutionality remained unconfirmed. Because the campaign was not yet finished, even if Mannal’s present complaint was dismissed, he could easily bring a second or third complaint against another publication by the PAC, effectively depriving them of speech.

As to the question of constitutionality, the court stated that the right to free speech could be limited in light of the legitimate state interest to curb electoral fraud. However, because the law leaves out the elements of reliance and damages—necessary elements of regular fraud statutes—the law touches on both fraudulent and non-fraudulent speech. The law had the same shortcomings with regards to defamation statutes as it did with fraud: the elements did not match, so the law made criminal non-defamatory speech as well. By also finding that the statute was a content-based regulation of speech, the burden fell on Massachusetts to prove the constitutionality of the statute.

In the Stolen Valor Act case (Alvarez) no majority agreed on the level of scrutiny for regulation of speech under the First Amendment. The Supreme Judicial Court avoided this quandary by using the Massachusetts Constitution—which clearly calls for strict scrutiny in such cases—rather than the federal. As such, the court ruled that Massachusetts was unable to show that the statute overcame strict scrutiny. Assuming that the promotion of truths and the avoidance of lies in political campaigns is a legitimate state interest, the law is not necessary to reach this end. Rather than sue the PAC under this law, Mannal could have simply started his own advertising campaign to debunk the PAC’s claims, assuming they were indeed false in the first place.

Interestingly, Massachusetts used the Citizens United decision to rebut the “simple truth” argument, claiming that a PAC with enough funding could foreseeably convince the public of falsities. Finally, the court held that the law was vague and not narrowly tailored, which opened it up to be used against speech that was not in fact false, and also made the law difficult to enforce in the short timespan of an election.

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