The Office of Attorney General Maura Healey will on Thursday defend the constitutionality of a state statute that makes it a crime to knowingly lie in political campaign material — opposing civil liberties advocates, newspaper publishers, and a trend in judicial rulings that concludes such laws can have a chilling effect on free speech.
Facing a constitutional challenge for the first time, the state’s campaign law will be debated before the Supreme Judicial Court on Thursday during arguments in a case brought by a woman facing jail time for circulating inflammatory campaign mailers before last November’s election.
The target of those mailers, state Representative Brian Mannal, a Barnstable Democrat, brought a criminal complaint against the woman, saying her false campaign claims intentionally defamed him. But she — and the super PAC she was representing — counter-sued and sought to overturn the law on constitutional grounds.
Assistant Attorney General Amy Spector plans to stand by the decades-old state law, which says no one can knowingly publish false statements to try to steer a vote for public office. The statute is aimed at protecting the integrity of the political process, according to the commonwealth’s brief. And, she argues, it’s appropriately narrow, affecting only falsehoods that are intentionally made; fraud and defamation are not constitutionally protected, she noted.
But the American Civil Liberties Union and media groups, including the Globe, took the opposite tack, filing amicus briefs arguing the statute is patently unconstitutional and inhibits political discussion. Courts have unanimously overturned laws governing false campaign speech in recent years, following the Supreme Court’s 2012 decision in United States vs. Alvarez, they argued.
“The statute impermissibly restricts the free speech rights of speakers in the Commonwealth, much like similar statutes in Minnesota, Ohio, and Washington struck by courts in recent years,” said the brief from a group led by the New England First Amendment Coalition. “Regulating false speech in the realm of elections, where free speech rights have their highest import, impermissibly allows the government to become the arbiter of political and social discussion.”
“I think it’s surprising that the state is defending the law,” said Justin Silverman, executive director of the New England First Amendment Coalition. “It’s clearly vague and could have some repercussions and effects on the press.”
A key question, Silverman added, is who decides what information is accurate in the heat of a campaign. “Do you have the government step in and be an arbiter of the truth and determine what’s false or not? Or do you, as we firmly believe, allow those ideas to go into the marketplace and have the public determine what information they need. That’s not a new thought. That’s a principle that’s behind much of the First Amendment.”
The case originated on Cape Cod, where flyers lambasted Mannal, an incumbent legislator, for sponsoring a bill involving sex offender rights. The bill would have notified indigent sex offenders of their right to a public defender at a review hearing before the Sex Offender Registry Board.
The flyers, mailed out by the Jobs First Independent Expenditure Political Action Committee, accused Mannal of “putting criminals and his own interest above our families,” and “helping himself,” since he had also done work as a public defender.
Mannal, however, had never represented sex offenders before the board, and is not certified to do so, he said.
The legislator, who was reelected in November, pursued a criminal complaint against Jobs First treasurer, Melissa Lucas.
They counter-sued and sought a ruling that would stay the charges against her in Falmouth District Court and overturn the state law.
Neither Lucas nor an attorney handling the case, Peter Charles Horstmann, would comment Wednesday.
The attorney general’s office is arguing that the SJC should dismiss the charges on statutory grounds without considering the constitutionality of the law, because the statute doesn’t apply in this case; the statements in question in the flyer “are not fact statements, but rather are opinions, to which the statute does not apply,” the brief states.
However, if the court takes on the constitutional issue, it should uphold the statute, the attorney general’s office argues, noting that the statute only covers fraud and defamation, which the US Supreme Court has repeatedly found are not protected by the First Amendment. Since the statute states that only those who “knowingly violate” it can be punished, it presents an even higher legal threshold than the “actual malice” required to prove defamation of public figures, the brief states.
Though Mannal argued he had never represented sex offenders — one basis for his case — the attorney general wrote that it could be interpreted differently. Perhaps he could begin representing them; or his caseload would increase when attorneys who do represent sex offenders got busier; or he could win political support from the defense bar for his efforts.
While he was gratified that the attorney general intends to defend the law, Mannal said in an interview Wednesday he was surprised she challenged his case on other grounds.
“Many commentators had suggested that the law may be found unconstitutional, but they never doubted that defamatory and false nature of the statements,” he said. “Interestingly enough, the AG’s office seems to question the factual nature of the statements but finds the statute constitutional.”
He maintains that he was wronged in campaign season in a way that is not protected by the Constitution.
“I don’t think that the newspapers or bloggers have anything to truly fret about — unless it’s their intention to use lies to steal elections,” he said.
Still, the attorney general’s office pointed to other Massachusetts cases in which defamation claims have been denied by courts that found the language too vague, or the political setting too heated, to sway minds.
The attorney general is tasked with defending state laws that are challenged in court, though some in her shoes have broken away from such obligatory allegiances. Four years ago, for instance US Attorney General Eric H. Holder Jr. announced the Obama administration had decided the federal Defense of Marriage Act was unconstitutional and would no longer enforce it.
Laurence H. Tribe, professor of constitutional law at Harvard, noted that while an attorney general may decline to defend a law, “in sufficiently extreme cases,” or when directed by the president as Holder was, Tribe said “an independently elected state AG like AG Healey might be regarded as having less discretion to take such a stance.”