Blog Post #19: The Right to Lie: Challenging the First Amendment

By Collin Shannon 

The free speech protections granted by the First Amendment of the United States Constitution are among the strongest in the world. Even so, a number of exceptions to such protections exist because, even in a free society, there are justifications for restrictions of total free speech.[1] A potential new exception to the First Amendment’s protections has already existed in many states for decades: a prohibition on knowingly or recklessly disseminating false or deceptive political advertisements for the purpose of supporting or defeating political campaigns.[2] Given that these laws prohibiting false political speech have met no support in courts because they have been held unconstitutional, now is the time for the Supreme Court to address this issue. The case of Arneson v. 281 Care Committee may be coming before the Supreme Court this term.[3]However, the Minnesota statute is already in danger following an Eighth Circuit ruling that it was unconstitutional.[4]

In 2014, the Supreme Court had a similar ruling in Susan B. Anthony List v. Driehaus, but the case revolved more on whether Susan B. Anthony List had standing to sue Ohio for its statute criminalizing knowingly false statements about candidates, not the actual constitutionality of the law.[5] The Supreme Court remanded Susan B. Anthony List, and then the lower courts ruled that the Ohio statute was unconstitutional when subjected to strict scrutiny for want of narrow tailoring to affect a compelling government interest.[6]

Knowing that the First Amendment analysis required to win this case will undergo strict scrutiny unless the Court has a procedural means of handling the issue, the Petitioners must take it upon themselves to show the causal link between the restrictions imposed by Minnesota’s law and the harm caused by intentionally deceptive political speech.[7] The efficacy of the restriction is easy enough to prove, but the harm caused by false political speech is nebulous at best.[8]

How, then, does one go about proving these elements required to pass strict scrutiny? Data. Proponents of the law need to take selections of false statements of fact from both major political parties, show them to potential voters, and then collect data on perceived changes.[9] The Minnesota statute at issue in 281 Care Committee imposes criminal liability for both knowingly making false statements, which requires a showing of intent, and for recklessly disregarding veracity.[10] This means that willfully disseminating information to harm or help a candidate would be a crime if the information were false, when easily obtainable information that contradicts the disseminated assertion exists.[11] The falsity and provability of the information are important aspects of potentially imposing a restriction on free political speech; otherwise, groups could be punished for unpopular minority positions, or for lacking the means to check the veracity of a claim due to difficulty obtaining the information necessary to fact-check.[12]

The 281 Care Committee case is an opportunity to right the course of American politics. In their current form, political advertisements can outright lie to voters in an effort to persuade people to support or oppose movements and candidates. Voting and the political process are too important to American society to allow falsities to continue unfettered, so now is the time to make political information fall in line with other aspects of First Amendment Jurisprudence.[13]

[1] See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919) (barring acts of speech that were intended to incite imminent criminal acts); Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (establishing First Amendment defamation protections); Miller v. California, 413 U.S. 15, 25 (1973) (allowing prohibition on obscene materials with no social value); New York v. Ferber, 458 U.S. 747, 765-66 (1982) (permitting a prohibition on child pornography).

[2] See, e.g., Ohio Rev. Code Ann. § 3517.21 (West 1995).

[3] See Petition for Writ of Certiorari at i, Arneson v. 281 Care Comm., 638 F.3d 621 (8th Cir. 2011) (No. 14-779) (asking extent of protections for false statements of fact meant to deceive voters); see also 281 Care Comm. v. Arneson, 766 F.3d 774, 777 (8th Cir. 2014), petition for cert. filed, (U.S. Jan. 5, 2015) (No. 14-779).

[4] 281 Care Comm. v. Arneson, 766 F.3d 774, 787-88 (8th Cir. 2014).

[5] See Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2347 (2014).

[6] Susan B. Anthony List v. Ohio Elections Comm’n, 2014 WL 4472634, at *7-8 (S.D. Ohio 2014). But see id. (holding that the Commission had failed to properly explain the link between the restriction and the injury to be prevented because the injury was hard to quantify).

[7] See Minn. Stat. Ann. § 211B.06 (West 1988); see also Susan B. Anthony List, 2014 WL 4472634, at *7-8.

[8] See Susan B. Anthony List, 2014 WL 4472634, at *7-8 (stating that defendants admitted it was difficult to articulate the harms of hales political speech).

[9] See, e.g., Becky Bowers, Ad says Barack Obama promised the jobless rate would be 5.6% if Congress passed the stimulus, Politifact (Oct. 9, 2012, 3:02 PM) (finding that advertisement claiming President Obama promised unemployment rates of 5.6% after passing a stimulus bill were mostly false and never promised); Jon Greenberg, Florida Dems say Romney supported law that could have banned some kinds of birth control, Politifact (Nov. 2, 2012, 10:14 AM) (finding that a democratic group was misstating facts when it declared Romney supported bills that would make personhood begin at conception, and consequently bar some types of contraception).

[10] See § 211B.06 (a).

[11] See id.

[12] See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011) (holding that Westboro Baptist Church may picket funerals and is not subject to tort liability for non-disruptive behavior on public land); see also Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415, 445 (1963) (holding that freedom of expression is not based upon race, creed, political affiliation, popularity, or social utility).

[13] See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (holding that public figures cannot recover tort damages for intentional infliction of emotional distress caused by a publication unless the plaintiff shows that there was malice in the act, such as publishing statements known to be false or recklessly disregarding the veracity or falsity of the statements) (emphasis added). Cf. Peel v. Attorney Registration & Disciplinary Comm’n of Illinois, 496 U.S. 91 (1990) (holding that states may restrict false commercial advertising). But see Sweeney v. Patterson, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678 (1942) (“Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors . . . political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man’s mental states and processes, are inevitable.”).