In the first test of its constitutionality, a state law that makes it illegal to lie in campaign ads is being challenged by a Republican political action committee whose treasurer is facing criminal charges over a negative mailing in the last election cycle.
The Jobs First Independent Expenditure Political Action Committee aims to strike down a 1946 state statute that bars anyone from knowingly making false statements about a candidate.
Jobs First argues the state law is unconstitutional, providing a “chilling effect” on free speech by protecting elected officials from criticism.
But a state legislator says he was defamed by the PAC’s campaign fliers.
“They’re arguing for the right to lie. I’m arguing that the First Amendment does not provide them with that right,” said Representative Brian Mannal, a Barnstable Democrat.
The political system, he said, has been upended by the Citizens United Supreme Court ruling, which opened the door for unlimited campaign spending as a right of free speech. “I’m fighting for every one of us who says that the Citizens United case was flawed and that there needs to be truth and fair dealing in political campaigns,” said Mannal.
The Jobs First super PAC, funded largely by Republican donor Christopher Egan, was formed last year by veteran GOP strategists Rob Gray and Andrew Goodrich, along with a sister nonprofit organization that tracks legislators’ records.
The legal battle playing out in state and federal court stems from Mannal’s 2014 reelection effort, in which he was targeted by Jobs First for his legislation involving sex offender rights.
A bill that Mannal sponsored would have notified sex offenders who are indigent of their right to a public defender at a review hearing before the Sex Offender Registry Board.
Jobs First circulated a mailer that accused Mannal of trying to capitalize on his own legislation, “putting criminals and his own interest above our families,” and “helping himself,” since he had also done work as a public defender.
“Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals,” the flier said. “Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders.”
Mannal, however, had never represented sex offenders before the board, and is not certified to do so, he said.
Still, angry constituents called his legislative office expressing their “disgust and contempt for him for filing legislation that he stood to benefit from,” Mannal wrote in a court filing.
The “libelous statements” caused him and his wife emotional distress and mental pain and anguish, he wrote.
Mannal did more than hold a press conference to try to clear his name. In October, before he won reelection, he sought criminal charges against the woman listed as treasurer on the super PAC’s campaign finance documents.
A Falmouth District Court assistant clerk magistrate granted his request in January, and treasurer Melissa Lucas is due to be arraigned on a misdemeanor charge this month.
Mannal believes he is the first to actually pursue criminal charges in a campaign case. He said he did so “because I was criminally wronged.”
“If you were walking down the street and someone were to punch you in the face, you would have the opportunity to file a criminal complaint for that,” Mannal said. “In my case, that punch in the face came in the form of tens of thousands of libelous and false electioneering communications distributed to literally every registered address in the community I represent.”
Faced with criminal charges, the super PAC went on the offensive, filing a lawsuit in US District Court against Mannal and the state attorney general. That complaint argues that Mannal abused the system by seeking a criminal complaint against Lucas.
“Mannal abused the Massachusetts criminal court process for the illegitimate purpose of gaining additional publicity for himself and his campaign while simultaneously chilling Jobs First’s right to engage in political speech,” the complaint states.
In its suit, Jobs First calls the state law unconstitutional, saying it is overly vague and broad; that it regulates speech based on its content; and that it lacks any requirement of actual malice, which the Supreme Court’s landmark New York Times vs. Sullivan made the standard for proving libel against a public figure.
Still, Mannal contends that the super PAC acted maliciously by knowingly misrepresenting his work as a public defender: The 2013 Boston Herald article cited in Jobs First’s mailer made clear that he did not personally represent sex offenders.
Neither Lucas nor her attorney, Peter Charles Horstmann, would comment.
The state law, which carries a potential penalty of up to six months in jail or a $1,000 fine, is often cited but seldom prosecuted. In 2010, Republican Scott Brown raised the specter of charges, but never pursued them, after railing against an inflammatory mailer sent by the Massachusetts Democratic Party.
It is unclear how the cases will proceed in either court. Though Mannal sought the criminal complaint himself, he noted that prosecution would be handled by the district attorney’s office. And Cape and Islands District Attorney Michael O’Keefe is a Republican who endorsed Mannal’s challenger.
It is also unclear how the state’s new attorney general, Maura Healey, will handle a case challenging a state law on free-speech grounds.
The attorney general’s office believes it is the first test of the law’s constitutionality, and noted in its filings that it does not intend to enforce the statute while the challenge is being heard.
“Our office has not yet taken a position regarding the constitutionality of this statute,” said Brad Puffer, a spokesman for the attorney general. “This is an important issue and the new attorney general expects to fully review the matter.”
Similar state laws were overturned in Ohio and Minnesota last fall.
“The problem is that, at times, there is no clear way to determine whether a political statement is a lie or the truth,” wrote the judge in the Ohio case. “What is certain, however, is that we do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the government might persecute those who criticize it. Instead, in a democracy, the voters should decide.”
One constitutional expert said the Massachusetts law would be similarly hard to defend.
“It’s dramatically unconstitutional in its sweep,” said Laurence H. Tribe, the Carl M. Loeb University Professor and professor of constitutional law at Harvard. “This is an easy one.”
The Supreme Court even struck down a federal law that made it illegal to lie about receiving a Medal of Honor, he noted, and held that lying can be criminalized in only limited instances, such as perjury.
“It’s true that our politics from the very beginning has involved a lot of mudslinging,” he said. “But only in a tyrannical society can you shut that down this broadly.”