Mass. high court overturns law that banned lies in campaigns

The Massachusetts Supreme Judicial Court on Thursday tossed out a state law that made it illegal to lie in political campaign material, calling it “inconsistent with the fundamental right of free speech.”

In a case brought by the treasurer of a political action committee who was facing jail time for distributing inflammatory campaign fliers targeting a state lawmaker, the state’s highest court ruled that the decades-old law “chills the very exchange of ideas that gives meaning to our electoral system.”

Before last fall’s election, state Representative Brian Mannal, a Barnstable Democrat, filed a criminal complaint against Melissa Lucas, the treasurer of the super PAC that mailed fliers accusing him of putting the interests of sex offenders ahead of families. He called the claims false and intentionally defamatory.


But Lucas and the Jobs First Independent Expenditure Political Action Committee counter-sued, challenging the 1946 state law, which prohibits anyone from publishing a false statement about a political candidate in order to defeat the candidate or impact the outcome of a ballot question. The law carried a jail sentence of up to six months or a $1,000 fine.

In the 31-page decision, the court stated that “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which the people’s wishes safely can be carried out.”

It continued, “Citizenry, not government, should be the monitor of falseness in the political arena.”

The mailing criticized Mannal for sponsoring a bill that would have notified indigent sex offenders of their right to a public defender at a review hearing before the Sex Offender Registry Board.

The message accused Mannal, of “putting criminals and his own interest above our families,” and “helping himself” because he had also worked as a public defender.


Mannal had never represented sex offenders before the board, and is not certified to do so, he said. He won reelection by 205 votes.

Though Mannal said he understood the reasoning behind the court’s decision, he fears that it will lead to big-money PACs spewing lies to win elections.

“My fear is that it will encourage PACs to knowingly make false statements for the purpose of adversely affecting the campaign,” he said. “You’re going to see a lot of money poured into campaigns for the purpose of attacking candidates and misleading voters.”

But Justice Robert Cordy wrote that there already exists a remedy to that problem: “That solution is counter speech.”

In overturning the state law, the court also dismissed Mannal’s criminal complaint against Lucas.

Peter Charles Horstmann, Lucas’s attorney, called the ruling a victory and said “it means that candidates cannot achieve a tactical advantage by silencing [opponents] with the use of the statute.” He said his client, a Melrose resident, never expected her part-time job to result in criminal charges.

The president of the super PAC that successfully challenged the constitutionality of the law called on the Massachusetts Bar Association to investigate Mannal’s conduct.

“His attack on free speech shows him to be an unethical politician and an embarrassment to the House of Representatives,” said Andrew Goodrich. “Mannal cynically abused the legal system for his own political purposes.”

There are about a dozen other states with similar laws, but complaints are hardly ever filed said Ilya Shapiro of the libertarian Cato Institute, a public policy research organization.


If a complaint is filed, it is often dropped after the election because “the point is to chill the speech,” said Shapiro. He said no one has ever been prosecuted under such a law.

“When a statement is politically false, that’s a judgment to be made by the voters, not judges.”  The state attorney general’s office defended the law as constitutional, saying it covered only fraud and defamation, which are generally not subject to free speech protections. Furthermore, state lawyers argued, the law applied only to people who knowingly violated it.

The Supreme Judicial Court roundly rejected that argument. Regardless of what the law covered, the justices ruled, it was written in such a way that candidates or advocates could use it to intimidate their opponents.

“We appreciate the court’s careful examination of the constitutionality of law and the clarity it has now provided moving forward,” Christopher Loh, spokesman for Attorney General Maura Healey said in a statement.

The legal challenge was backed by civil liberties advocates and media companies including The Boston Globe, who argued the law improperly stifled political speech. Those groups praised the ruling.

“The political campaign is particularly a rough and tumble environment,” said Ben G. Robbins, senior attorney for the New England Legal Foundation. “Let the people sort it out, let the counter-speech deal with it, [and] let the listener decide that without state interference.”

Matthew Segal, legal director for the ACLU of Massachusetts, said it was unreasonable to expect a law to keep political discourse clear of falsehoods.


“To have a law decide factual disputes through the criminal process would threaten the entire reason we have elections,” said Segal.

Jan Ransom can be reached at jan.ransom@globe.com. Follow her on Twitter at @Jan_Ransom. Andy Rosen of the Globe staff contributed to this report.