Regular readers might recall a Supreme Court brief Cato filed last year in SBA List v. Driehaus, which involved a challenge to an Ohio law that made it a crime to “lie” about a politician during an election. That case predictably resulted in the law being overturned as an unconstitutional violation of the First Amendment.
But that wasn’t the end of the story. Because SBA List reached the Supreme Court on procedural grounds – and the law was only declared unconstitutional by the district court on remand – the ruling didn’t automatically invalidate similar laws across the nation. Over a dozen states still have criminal laws almost identical to Ohio’s, letting thin-skinned politicians haul their critics into court whenever they think politics attacks against them are unfair.
One of these states was Massachusetts. Earlier this year, Cato filed an amicus brief in the Massachusetts Supreme Judicial Court to argue that there was no way that the law could withstand any level of First Amendment scrutiny. The SJC agreed. In an opinion released this past Thursday, the court invalidated the law for being “antagonistic to the fundamental right of free speech,” and chilling “the very exchange of ideas that gives meaning to our electoral system.”
While a victory, the facts of Commonwealth v. Lucas show just how odious and dangerous these law are in practice. The case began with Brian Mannal, a sitting state representative. When he was last up for reelection (he won by 205 votes), Mannal took issue with a series of flyers distributed by his critics. Instead of engaging in a debate about the underlying issues, Mannal initiated criminal proceedings against the treasurer of the organization that published the flyers. This demonstrates one of the most dangerous aspects of these laws: any politician whose ego has been bruised can file a complaint in order to silence and intimidate opponents.