The Volokh Conspiracy
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I want to thank Eugene for inviting me to write about an article Evan Ringel and I recently published titled First Amendment Limits on State Laws Targeting Election Misinformation, 20 First Amend. L. Rev. 291 (2022). The article expands on a whitepaper we wrote in 2021 that cataloged state efforts to regulate election-related speech (available on SSRN).
In today's post and over the remainder of this week, we plan to: (1) provide a summary of our project to study state efforts to regulate election-related speech; (2) present an overview of state laws that target election-related speech; (3) explore potential First Amendment frameworks for assessing the constitutionality of government restrictions on election speech; (4) assess whether existing state laws restricting election-related speech are likely to pass First Amendment scrutiny; and (3) discuss how these state approaches intersect with broader societal efforts to reduce the frequency and impact of election misinformation.
What follows is an excerpt from our article (minus the footnotes, which you will find in the full PDF). The article went to press before the Fourth Circuit in Grimmett v. Freeman enjoined the enforcement of a North Carolina statute that makes it a crime to publish or circulate derogatory reports about political candidates (see Eugene's posts on the case here and here). We'll discuss this case on day 4.
The last two presidential election cycles have brought increased attention to the extent of misinformation—and outright lies—peddled by political candidates, their surrogates, and others who seek to influence election outcomes. Given the ubiquity of this speech, especially online, one might assume that there are no laws against lying in politics. It turns out that the opposite is true. Although the federal government has largely stayed out of regulating the content of election-related speech, the states have been surprisingly active in passing laws that prohibit false statements associated with elections.
State statutes regulating speech associated with elections are not a new phenomenon, but the increase over the last decade in both their number—and scope of coverage—suggest that state legislatures continue to see a problem that needs to be addressed. In 2014, when the Supreme Court last took up a case addressing restrictions on the content of election-related speech in Susan B. Anthony List v. Driehaus, sixteen states had statutes that directly targeted false statements in the context of local and national elections. Today, thirty-eight states have such laws and when we include state statutes that indirectly regulate election-related speech by prohibiting fraud and intimidation in elections, the number rises to forty-eight states and the District of Columbia (Maine and Vermont are the exceptions).
Despite the obvious First Amendment issues these laws raise, there are only a handful of court decisions at any level that expressly address their constitutionality and the U.S. Supreme Court, for its part, has been "erratic at best" in developing a First Amendment framework for analyzing government efforts to regulate the content of election-related speech. For example, some cases state that election-speech restrictions should be subject to the highest level of First Amendment scrutiny. Other cases, however, suggest that government efforts to improve the functioning of elections should be subject to greater judicial deference.
Prompted by concern about the impact of misinformation on the American electorate, we set out to assess the extent to which existing state and federal laws limit election misinformation and the prospect that these laws will survive First Amendment scrutiny. In doing so, we reviewed more than 125 state statutes that regulate the content of election-related speech. The statutes, though mostly unenforced so far, vary widely in scope. For example, Alaska punishes false statements about a candidate "made as part of a telephone poll or an organized series of calls, and made with the intent to convince potential voters concerning the outcome of an election." North Dakota's statute, which is much broader, reads as follows:
A person is guilty of a class A misdemeanor if that person knowingly, or with reckless disregard for its truth or falsity, publishes any political advertisement or news release that contains any assertion, representation, or statement of fact, including information concerning a candidate's prior public record, which is untrue, deceptive, or misleading, whether on behalf of or in opposition to any candidate for public office, initiated measure, referred measure, constitutional amendment, or any other issue, question, or proposal on an election ballot, and whether the publication is by radio, television, newspaper, pamphlet, folder, display cards, signs, posters, billboard advertisements, websites, electronic transmission, or by any other public means.
As these examples show, state laws can target the content of election-related speech in multiple ways. Some statutes prohibit false and misleading factual statements about candidates for public office, while others target false statements about ballot measures, voting requirements, or voting procedures. Several states have statutes that prohibit false statements of source or authorization in a political communication or that prohibit false statements of endorsement or incumbency. Many states have statutes that cover more than one type of content. State laws can also indirectly regulate election-related speech by prohibiting fraud and intimidation in elections. Although these laws are generally geared towards physical intimidation and coercion, they often contain language that is broad enough to implicate campaign and election speech.
Because they target speech based on its content, many of these statutes could be subject to significant First Amendment challenges. Indeed, the handful of statutes that have already faced a court challenge did not fare well.
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[As we will discuss later,] state laws that restrict election speech will face an uphill battle under the First Amendment. In this article we attempt to map some of the contours of this battle.
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In brief, what we found is that . . . many statutes suffer from serious constitutional deficiencies. Statutes that target defamatory speech or speech that harms the election process, is fraudulent, or that intimidates voters are likely to be permissible, while statutes that target other types of speech that have not traditionally been subject to government restriction will face an uphill battle in demonstrating that they are constitutional. Apart from their scope of coverage, statutes that impose civil or criminal liability without regard to the speaker's knowledge of falsity or intent to interfere with an election are especially problematic. Given the need to provide "breathing space" for election-related speech, it is likely that statutes that impose strict liability for election misinformation will run afoul of the First Amendment.