On August 6, 2015, the Massachusetts Supreme Judicial Court (SJC) in Commonwealth v. Lucas struck down Massachusetts General Laws, Chapter 56, § 42 (Section 42), which criminalized the utterance or publication of “any false statement in relation to” a candidate for public office or a ballot question. Violations of the statute were punishable by a thousand dollar fine or up to six months imprisonment. Justice Robert J. Cordy, writing for a unanimous court, held that Section 42, which had been around since 1946, violated both the First Amendment and its state counterpart, Article 16 of the Massachusetts Declaration of Rights.
Commonwealth v. Lucas
Brian Mannal is the Massachusetts State Representative for the Second Barnstable District (for those of you not from around here, that’s the part of Cape Cod just above Hyannis). In the month before the 2014 elections, Mannal started getting hammered in pamphlets distributed by a Political Action Committee called Jobs First Independent Expenditure (Jobs First). The statements in those pamphlets included:
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.
Brian Mannal is putting criminals and his own interest above our families.
You may be thinking that this is pretty tame stuff, or at least par for the course in a rough and tumble political landscape dominated by the likes of Donald Trump. But Representative Mannal didn’t agree. He filed an application for a criminal complaint to issue against Melissa Lucas, the chairperson of Jobs First, alleging that she had published false statements in violation of Section 42. Facing unexpected criminal charges, Lucas cancelled a slate of radio advertisements that Job First had planned for the days leading up to the election. Mannal, now with fewer active political critics, won reelection by a mere 205 votes.
On December 18, 2014, after the election, a Barnstable county clerk-magistrate held a probable cause hearing. The clerk-magistrate determined that there were sufficient grounds for the charge, and issued a criminal complaint. Lucas then took the matter to a single justice of the SJC, who reported the case to the full court. The Attorney General intervened on behalf of the Commonwealth to defend the statute’s constitutionality, but nobody from Barnstable county showed up to argue that the clerk-magistrate had applied the statute correctly. In fact, the parties appearing before the SJC (Lucas and the Attorney General) seemed to agree that Lucas had done nothing wrong. Therefore, the issue before the Court was not whether the statute should apply to Lucas, but whether it was constitutional and could apply to anyone at all.
Capable of Repetition Yet Evading Review
Justice Cordy first addressed whether the SJC should decline to rule on the constitutionality of Section 42. The Commonwealth argued that the SJC should leave the matter alone because Lucas had the alternative remedy of a motion to dismiss the criminal complaint, which she was probably going to win because her statements were clearly opinions that fell outside the ambit of the statute. But Judge Cordy pointed out that Mannal had been able to convince the clerk-magistrate to ignore the fact-opinion distinction, and thus had been able to use the criminal process to chill a political opponent’s speech just before an election. “As was the case here, by the time of the probable cause hearing the election may well be over and the damage will be done.” Thus, Section 42 presented a constitutional question that was “capable of repetition yet constantly evading review,” so the SJC would review it.
Defamation and Fraud
The Commonwealth argued that a constitutional analysis was unnecessary because Section 42 punished only fraud and defamation, two categories of speech that are not protected by the First Amendment or by Article 16. However, Judge Cordy found that the statute in fact purported to apply to a broader array of speech that did not fit within either of those causes of action. Fraud requires reliance and harm, but Section 42 did not. Defamation requires a false statement about the plaintiff, but Section 42 would apply to false statements by a candidate about himself or herself. For example, a false claim by a candidate that he was a graduate of Harvard would not be defamatory, but it would violate Section 42.
The Commonwealth then argued that, even if it was appropriate to conduct a constitutional analysis, Section 42 would pass muster because it was necessary to serve a compelling state interest and was narrowly tailored to achieve that end. Justice Cordy agreed with the Commonwealth that it had a compelling interest in free and fair elections. However, governmental efforts to promote this interest by punishing political speech had an undistinguished and discredited history dating back to the Sedition Act of 1798. The suppression of such speech is rarely the answer. On the contrary, as the U.S. Supreme Court has held, “the remedy for speech that is false is speech that is true.”
Justice Cordy also rejected the Commonwealth’s argument that, because the U.S. Supreme Court’s opinion in Citizens United put so much power into the hands of monied interest groups, mere counter-speech is no longer an effective remedy for political lies. “Regardless of the essential impact of Citizens United on the democratic process,” Justice Cordy wrote, “that decision does not provide any support for reducing the constitutional protection afforded core political speech.”
The Court dismissed the criminal complaint against Lucas, and held that Section 42 was “antagonistic” to free speech principles and therefore invalid. No matter how well intended and how fairly enforced, Section 42 was intolerable because, “as the facts of this case demonstrate . . . the statute may be manipulated easily into a tool for subverting its own justification, i.e., the fairrness and freedom of the electoral process, through the chilling of core political speech.”