SJC Declines “An Invitation to Mischief” on Political Speech

Though August may be a quiet time at the State House, it has been anything but for the justices of the Supreme Judicial Court (SJC).  In the first two weeks of this month, the state’s highest court has issued two major decisions with particular interest for our members.  On August 6, the Court declared unconstitutional a 1949 law that criminalizes certain false statements used in political campaigns.  One week later, the Court upheld the 2011 anti-human trafficking law against its first challenge.    This week we will break down the free speech case and next week we will discuss human trafficking.  Both are important cases for the state and set key precedents that will shape their areas of law going forward.

During his state legislative campaign in the fall of 2014, Second Barnstable District Representative Brian Mannal was facing a challenge for his legislative seat.  In October, the Jobs First Independent Expenditure Political Action Committee (PAC) distributed brochures alleging that:

“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”; and

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

The quotes refer to a bill sponsored by Mannal, a former public defender, which would have notified indigent sex offenders of their right to a public defender before Sex Offender Registry Board hearings.  Mannal has never represented sex offenders at board hearings.

In late October, approximately two weeks before the election, Mannal responded by filing a criminal complaint against Melissa Lucas, the PAC’s treasurer, alleging that she knowingly published false statements designed to defeat Mannal’s candidacy in violation of M.G.L. c. 56 § 42.  In November, Mannal won the election by a mere 205 votes.

Eight months later, the SJC weighed in, unanimously holding in Commonwealth v. Melissa Lucas that the law in question is an unconstitutional restriction on free speech.  The court reasoned that the law was a content-based speech restriction and thus merited strict scrutiny review, meaning the government must establish that the statute is both necessary to serve a compelling state interest and narrowly tailored to achieve that end.

The Commonwealth addressed the issue in two ways, arguing both that the statute does not apply because the statements at issue are opinions that cannot be proven false and also that the statute is constitutional because it only reaches fraudulent and defamatory speech, forms of speech that are not protected under the First Amendment.

While the court stated that free and fair elections may be a compelling interest (though they are not so in this case), the Lucas opinion is clear that § 42 is not necessary to serve that interest.  Though the statute could be used to punish defamatory or fraudulent speech, it casts a far wider net, reaching other forms of speech (12-13). The court explains that the statute can “be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech” (26-27).  The best protection against the speech contemplated in the statute is counterspeech, the “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” (29).  The court concludes that § 42 is “antagonistic to the fundamental right of free speech” (31) and declares the statute invalid.

However, social science may take issue with the court’s ruling.  As explained in the recent Boston Globe op-ed, “Confronting and Refuting Political Lies,” lies in political speech may have a major impact on the public and can be far more difficult to refute than suggested by the “marketplace of ideas” theory.

The lie itself usually opens up a new arena for discussion and, by being first on the ground, sets up the mental frame for the argumentation to come. Therefore, those wishing to refute a political lie have a two-part task: (1) They must convincingly articulate the truth and (2) they have to replace the existing frame of discussion with a more accurate one.

Those tasks are very difficult to accomplish.

Author Martin Evans, an organizational psychologist and professor emeritus at the University of Toronto, goes on to explain that the problem can compound itself, whereby when a candidate denies a lie, it only serves to reinforce the issue in people’s minds.  The best solution is actually to reorient the original frame by basically changing the subject, a challenging and undoubtedly frustrating thing to do.  In this context, § 42 comes from a good place – in theory protecting both candidates and the public from this situation.  However, as the SJC ruled, the statute is overly broad.  Could it be revised to reach only unprotected fraudulent and defamatory speech?

BBA Council member Jeff Pyle, Prince Lobel, who practices in media and First Amendment law, declared the decision “a resounding victory for the First Amendment.”  He believes that § 42 is “flatly unconstitutional” and that having such a law “is only an invitation to mischief,” opening the door for candidates to “strategically seek criminal charges in order to divert their opponent’s resources and distract from the campaign itself.”  Contemplating potential next steps by the Legislature, Pyle explained:

In my view, the Legislature also should not try to rescue the statute by limiting it to defamation or fraud.  To be actionable, a defamatory statement about a political candidate would have to be made with “actual malice,” meaning knowing or reckless falsity.  Other states have had laws that, unlike section 42, limited coverage to statements published with actual malice, but those statutes have been struck down nonetheless by such courts as the Court of Appeals for the Eighth Circuit (in the case of Minnesota’s statute), a federal district court in Ohio, and the Washington Supreme Court.  Limiting the statute to defamatory statements wouldn’t solve the underlying fact that it is counterspeech, not criminal process, that needs to be applied to false campaign claims.  Similarly, “fraud” is a poor fit to this kind of problem, because it requires not just a false statement, but inducing reliance to one’s detriment.

We will keep an eye out for any Legislative follow-ups and look forward to being part of the discussion should there be any proposed fixes.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association