BOSTON (CN) – Overturning a 70-year-old ban on false statements in campaign material, the highest court in Massachusetts said outlawing political tall tales chills free speech.
Thursday’s ruling notes that using lies to sway an election is nothing new, going as far back as the president election of 1800, during which Thomas Jefferson supporters called his opponent, John Adams, a “hideous hermaphroditical character which has neither the force or firmness of a man, nor the gentleness and sensibility of a woman.”
Meanwhile, the John Adams supporters called Jefferson “the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”
“We conclude that [the statute] cannot be limited to the criminalization of fraudulent or defamatory speech, is neither necessary nor narrowly tailored to advancing the commonwealth’s interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system,” Justice Robert Cordy wrote for the court.
The ruling comes from a dispute on Cape Cod where a political action committee published brochures presenting the incumbent state house representative from Barnstable as a greedy lawyer and an advocate for sex offenders.
This October marks a year since the political action committee for Melissa Lucas claimed that Rep. Brian Mannal supported sex offenders over families because he filed a bill that would allow some sex offenders to access the services of public defenders.
Citing Mannal’s work as a defense attorney when not serving as state representative, the brochure also implied that the bill was motivated by self-interest.
Though the ads didn’t work – Mannal won the election by 205 votes – Lucas faced criminal charges under a state law prohibiting false information in campaign material.
The case has been transferred to Falmouth but the judge there stayed proceedings and reported Lucas’ attack on the law’s constitutionality to the full Supreme Judicial Court in Suffolk County.
That court was unanimous Thursday in deciding to strike down Chapter 56, Section 42, of the state General Laws, under the First Amendment.
“The criminalization of such falsehoods is unnecessary because a remedy already exists: ‘the simple truth,'” Cordy wrote, citing a U.S. Supreme Court decision from 2012.
In U.S. v. Alvarez, the justices struck down the Stolen Valor Act’s criminalization of lying about the receipt of military honors.
While acknowledging his support for freedom of speech, Mannal was disappointed by the decision.
“It was a good day for the first amendment, but it was a sad day for democracy. Knowingly misleading voters for the purpose of affecting the outcome of an election is not something that should be protected,” he said. “It is disappointing. My fear is that this will embolden other groups to manipulate voters and run campaigns on the basis of false lies.”
Despite the possibility of promoting dishonesty in campaigns, the ruling has support from the American Civil Liberties Union, The New England First Amendment Coalition, The New England Legal Foundation and the Cato Institute, who all filed their won amicus briefs.
“While George Washington may have been incapable of telling anything but the truth, the whole truth, and nothing but the truth, his successors have certainly not had the same integrity,” Cato Institute attorney David Duncan wrote in amicus brief. “The campaign promise (and its subsequent violation), as well as disparaging statements about one’s political opponents (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy.” (Parentheses in original.)
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