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.
The basis for Mannal’s complaint was utterly ridiculous. The flyers drew voters’ attention to the fact that Mannal, who in addition to being a politician is also a criminal defense attorney, had sponsored bills to increase state funding for lawyers who represented indigent defendants and reduce the mandatory restrictions placed on sex offenders released on parole or probation. The flyers claimed that “Brian Mannal is putting criminals and his own interest above our families.”
Mannal insisted that this violated the state law against publishing “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” because, as he put it in his formal (handwritten) complaint “the mailer inferred [sic] in no uncertain terms that Brian Mannal sought to benefit financially from legislation that he had filed.”
Instead of compounding Mannal’s foolishness by prosecuting his victim, however, the district attorney referred the case to the SJC, asking the court to rule on the law’s constitutionality. The prosecutor sensibly declined to defend the law but, at the last minute, the state’s attorney general submitted a brief urging the SJC to uphold it.
And this is when things got really weird. Remember, this case wasn’t just argued in the immediate aftermath of the Supreme Court’s decisions in SBA List and United States v. Alvarez (striking down a law that made it a crime to falsely claim to have won military honors), but after nearly 200 years of rulings holding that political discourse is at the very heart of the First Amendment’s protection – and that any law that chills or limits electoral speech is presumptively invalid. Against that backdrop, the attorney general made what the court charitably called “the rather remarkable argument that the election context gives the government broader authority to restrict speech.” Of course, as the court noted “the opposite is true.”
And that’s the point: judges and other government officials should only be called upon to determine the truth or falsity of legal propositions – not political opinions.