Friday, August 7, 2015

Commonwealth v. Lucas: The Massachusetts Supreme Judicial Court Strikes Down a Law Prohibiting Lying in an Election

The high court of the State of Massachusetts ruled yesterday that people have a constitutional right to lie about candidates for public office.

OK, that's a little bit of an exaggeration -- but not much! The state's supreme court struck down G.L.c. 56 sec. 42, a 1946 statute that made it a crime to make false statements about political candidates or questions submitted to voters. Here are some of the high points of the court's opinion.

1. The court used the Massachusetts constitution, not the U.S. Constitution. Why? Well, there are a couple of reasons. First, the case law interpreting the state constitution was clear that the appropriate standard was "strict scrutiny," and that there would be strong presumption that the law was unconstitutional. A decision of the United States Supreme Court in a similar case -- United States v. Alvarez -- was not a majority opinion, with the plurality using strict scrutiny and the concurring justices using intermediate scrutiny. Second, when a state supreme court strikes down a law as unconstitutional under its own constitution, there can be no appeal that decision. State supreme courts have the final say as to the meaning of their own state constitutions. The court's decision in Lucas is final.

2. The court came to the same conclusion as in Alvarez. In United States v. Alvarez the United States Supreme Court ruled that the federal "Stolen Valor Act" violated the First Amendment. That law made it a crime for a person to lie about having received military honors. Mr. Alvarez lied about have been awarded the Congressional Medal of Honor, and the federal government prosecuted him under the Stolen Valor Act. The Supreme Court ruled that this kind of lie was protected by the first amendment. Unlike other kinds of lies like fraud, perjury, defamation, false advertising, or impersonating an F.B.I. agent, lying about receiving military honors does threaten to directly cause an immediate or concrete injury to other people. Lies during elections may cause grievous harm -- but the line of causation is not direct and immediate.

3. In Alvarez the U.S. Supreme Court found that "counterspeech," not criminal prosecution, is the appropriate remedy when a person lies about earning military honors. In Lucas the Supreme Judicial Court of Massachusetts came to the same conclusion about political lies. As Louis Brandeis said in Whitney v. California,
the remedy to be applied is more speech, not enforced silence.
Or, as Oliver Wendell Holmes wrote in Abrams v. United States,
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by 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.
4. The Massachusetts court used another of my favorite First Amendment quotations in Lucas. Learned Hand was perhaps the greatest American judge never to serve on the United States Supreme Court. In 1943 in the case of United States v. Associated Press Hand said that the First Amendment
presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always be will be, folly; but we have staked upon it our all.
5. The State of Massachusetts defended the law by contending that the government had a compelling interest in regulating speech during elections to insure accuracy. The high court of Massachusetts found just the opposite -- that it is critical that political speech be free of government oversight.

This was a sound decision, fully consistent with the First Amendment of the United States Constitution.

But it does impose a responsibility upon us. The government will not tell us which candidates are lying and which are telling the truth. We have that responsibility -- we must figure that out for ourselves.

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