On August 6, the Supreme Judicial Court, in Commonwealth v. Lucas, No. SJC-11380, held unconstitutional a Massachusetts statute criminalizing the publication of false statements about political candidates and political ballot initiatives “which [are] designed or tend to aid or injure or defeat such candidate . . . . [or] which [are] designed to affect the vote on such question.” G.L. c. 56, § 42. This firm signed an amicus brief submitted by the Cato Institute, urging the SJC to do so. The Court declined several opportunities to avoid deciding the constitutional issue and emphatically declared that exposing political litigants to criminal prosecution was too dangerous to a free and open political process to allow the statute any continuing validity.
Melissa Lucas was the President of a Political Action Committee (PAC) that distributed a brochure to voters in a legislative race, urging voters to vote against Brian Mannal, the incumbent. Among other statements, the PAC asserted that Mannal “chose convicted felons over the safety of our families,” “earned nearly $140,000 of our tax dollars to represent criminals,” and “is putting criminals and his own interest above our families.” Mannal applied for a criminal complaint two weeks before the election, and held a press conference announcing it. Lucas filed a motion to dismiss, challenging the constitutionality of the statute. The election was held before any hearings in the matter took place.
A clerk-magistrate, after hearing, issued a two-count criminal complaint. Before the case could be arraigned, Lucas petitioned a single justice of the SJC, pursuant to G.L. c. 211, § 3. Despite the availability of alternative avenues to review, which ordinarily would cause the single justice to dismiss such a petition, the single justice instead reported the case to the full bench. The case arrived at the Court with the clerk having found probable cause that the defendant had violated the statute, and in addition, with an affidavit from the defendant describing the additional campaign materials her PAC had refrained from disseminating during the election because of the criminal complaint application.
The key for the Court in finding the statute unconstitutional was that it made available to political actors the use of criminal charges as a political weapon, which threatened and discouraged not only false statements, but also statements of opinion and true statements. While the speaker might ultimately be vindicated in the course of criminal proceedings, the political objective of silencing an opponent would have been achieved by that time. The Court noted that, for instance, in this case the criminal complaint hearing was not held until after the election was completed, and that the defendant had refrained from airing additional campaign materials out of fear of additional charges.
For this reason the Court rejected the Commonwealth’s argument that it should limit its holding only to find that the statements for which Lucas was charged were, as a matter of law, opinion, and therefore not in violation of the statute. The Court noted that the bringing of charges had already curbed her speech, and if the statute remained available, it could be again used to the same effect, presenting a case “capable of repetition yet evading review.” Each time the statute is used in the heat of a political campaign it chills speech, possibly legitimate speech. If thereafter the only judicial response is to dismiss a complaint on the grounds that the speech did not violate the statute, that speaker’s, and all future speakers’, ability to engage in the political process would be diminished.
The Court acknowledged that the Commonwealth has a legitimate goal to maintain free and fair elections, and to prevent and punish election fraud and defamation, but found that the criminal statute reaches more broadly than fraud or defamation. Because the statute aims specifically at speech about political campaigns, it is content-based, and under Art. 16 of the Declaration of Rights must survive strict scrutiny of the fit between means and legitimate goal.
The “restricted” means to achieve these important goals, the Court noted, is “counterspeech” – i.e. in a political contest, the false or misleading claims of one side can and should be met by corrections and exposures from the other. “[T]he danger of such breadth [as this statute has] is that [it] may be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech.” Even if the statute were narrowed to cover only “knowingly false statements of fact, the distinction between fact and opinion is not always obvious and, evidently, was not obvious to the clerk-magistrate who issued the criminal complaint in this case.”
All of these concerns are heightened because in this Commonwealth “anyone may file an application for a criminal complaint under § 42.” Thus political rivals can use the filing of a complaint as a weapon, as likely was the case here, and ultimate vindication in the criminal arena will likely be at the expense of free expression in the political arena. “Thus,” the Court concluded, “even under a narrow construction, there is a genuine risk that the operation of § 42 will cast an unacceptable chill on core political speech.” And away it went. Donald Trump can sleep easier.