The Massachusetts Supreme Judicial Court handed a big win to free speech advocates today in its decision in Commonwealth v. Lucas, siding with defendant Melissa Lucas and declaring Massachusetts General Laws Chapter 56, Section 42 (“Section 42”) unconstitutional. The Cyberlaw Clinic filed an amicus brief (PDF) in the case, in support of defendant Lucas, on behalf of the New England First Amendment Coalition, Boston Globe Media Partners, LLC (owners of the Boston Globe), Hearst Television, Inc. (owners of WCVB-TV Channel 5 in Boston), the Massachusetts Newspaper Publishers Association, the New England Newspaper and Press Association, Inc., and the New England Society of Newspaper Editors. The SJC’s reasoning followed many of the arguments advanced by our amicus coalition.
Section 42 criminalized false campaign speech, providing as follows:
No person shall make or publish, or cause to be made or published, any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate.
No person shall publish or cause to be published in any letter, circular, advertisement, poster or in any other writing any false statement in relation to any question submitted to the voters, which statement is designed to affect the vote on said question.
Whoever knowingly violates any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months.
Our amicus coalition argued that Section 42 violated the right to free speech enshrined in the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights. As the coalition brief noted, the statute was an unconstitutional content-based restriction on speech, and swept a staggering array of speech into its ambit. By the terms of the statute, the law applied regardless of whether the speaker or publisher knew the statement at issue was false, whether the statement would be understood as false by a reader or viewer, or whether the statement was made in a context where it was clear it was false, such as reporting on another’s false statement or in parody or satire. This all has the risk of chilling robust political debate, especially where, as here, anyone can file an application for a criminal complaint and thus use the courts to suppress free expression. The brief also noted that other similar (often even narrower) state statutes had previously been struck as unconstitutional.
In its detailed decision today, the SJC agreed. Subjecting the statute to “strict scrutiny” in accordance with Article 16 as a content-based restriction on speech, the Court found that “the Commonwealth has not established that § 42 actually is necessary to serve the compelling interest of fair and free elections” (p. 20). Quoting from the United States Supreme Court’s decision in United States v. Alvarez, in which the Court held the Stolen Valor Act to be unconstitutional, the SJC noted that falsehoods can be addressed not via criminalization but via “the simple truth.” (p. 21). As the court noted:
Governmental efforts to supplant political counterspeech with the specter of incarceration date back to the earliest years of our constitutional democracy. The Sedition Act of 1798, […] enacted by Congress just seven years after the ratification of the First Amendment, made it a crime to “knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States … with intent to defame the said government … or to bring [it] … into contempt or disrepute.” […] In 1799, the Legislature issued a declaration of support for the Sedition Act. […] In the election of 1800, however, the unconstitutionality of the Sedition Act was a prominent theme in Thomas Jefferson’s successful campaign for the presidency. […] As the Supreme Court has observed, history has proven Jefferson right. [New York Times Co. v. Sullivan.] The fabric of jurisprudence woven across the years following the passage of the Sedition Act and, indeed, § 42 has illustrated vividly that the importance of preserving “the freedom to think for ourselves,” [Citizens United v. FEC] must be elevated over even those well-intentioned laws that have the effect of “censoring pure speech or speakers in order to ‘improve the quality’ or ‘increase the fairness’ of public debate.” [Bachrach v. Secretary of the Commonwealth.]
The Court expressed specific concern about how the breadth of this law could be “manipulated easily into a tool for subverting its own justifications, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech.” (p. 26-27.) A law prohibiting all “false statements” can be susceptible to many interpretations, and litigants could use the law to try and suppress many forms of speech that are traditionally robustly protected. The Court noted:
[E]ven in cases involving seemingly obvious statements of political fact, distinguishing between truth and falsity may prove exceedingly difficult. Assertions regarding a candidate’s voting record on a particular issue may very well require an in-depth analysis of legislative history that will often be ill-suited to the compressed time frame of an election. Thus, in the election context, as elsewhere, it is apparent “that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the people’s] wishes safely can be carried out. That at any rate is the theory of our Constitution.” [Lyons v. Globe Newspaper Co.]
For these and other reasons, the Court declared Section 42 unconstitutional, and dismissed the criminal charges against Lucas. “This is a victory not only for free speech, but for the freedom of the press,” said Justin Silverman, Executive Director of the New England First Amendment Coalition. “Had this criminal statute been upheld, there could have been disastrous consequences for publishers and reporters throughout the Commonwealth. This decision reaffirms the idea that the best response to false speech is the truth, and that the government should not be the arbiter between the two. Many thanks to the Cyberlaw Clinic and our fellow amici for helping to defend this fundamental First Amendment principle.”
HLS Cyberlaw Clinic students Catherine Essig (JD ’16), Naomi Gilens (JD ’16), and D. Patrick Knoth (JD ’16) worked with Andy Sellars and Chris Bavitz of the Clinic, along with the amici, to prepare and file this brief.