First Amendment Limits on State Laws Targeting Election Misinformation, Part I

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.

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.

Introduction

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.

[ * * *]

[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.

[ * * *]

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.

Comments

[ah....Clem]

" 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."

I think this basically gets it right, both from the perspective of what current precedents say the law is, and also what the law should be (INMHO).

Defamation is already unprotected speech, but usually (always?) remedied by a civil action as opposed to criminal. Some of these bills/laws (e.g. the North Dakota law cited above) criminalize defamation, and that's probably constitutional as long as the basic tests as outlined in NYT v Sullivan are followed. (assuming that Thomas et al are not successful in overturning it)

Fraud is unprotected, but also clearly criminal, so additional laws addressing election-related fraud may be unnecessary. The same may be said for intimidation.

Other types of speech that have not traditionally been subject to government restriction most definitely should face an uphill battle. I wish I had more confidence in our judiciary; recall that 1A protections were mostly a 20th century phenomena, and may not qualify as sufficiently "deeply rooted" to endure.

Question for the lawyers: Let's say I distribute a pamphlet deliberately misinforms people about the election date or polling place, and this causes some individuals to be unable to vote. Could this be prosecuted as fraud under existing laws? Seems that the would-be voters were deprived of something of value via deceptive information.

[ducksalad]

"" Statutes that target defamatory speech or speech that harms the election process....are likely to be permissible"

Maybe, but they shouldn't be.

Like it or not, defamation is core political speech and always has been. Defamation lawsuits should be prohibited in the case of political campaigns, or limit damages to a declaration of who is right and legal costs. Criminal defamation shouldn't exist at all and certainly not for political campaigns.

"Harms the election process" is way too vague a standard.

IMO bans should be limited to (a) true threats against a voter, (b) explicit incitement to attack a polling place or election office that is both intended and likely to make the attack happen imminently, (c) material that both mimics the appearance of an official announcement and gives false information about the date and location for voting in person, or deadline and address for absentee ballots, or (d) falsehoods made under oath.

(Idea for a presidential debate: the stage is located on the line between a red and blue state, both with over-the-top partisan AGs. The Dem stands on the red side, the Rep stands on the blue side. Both are put under oath at the beginning of the debate. The AGs each have a justice of the peace and some state police physically present backstage so arrest warrants can be issued and executed immediately. I'd tune in and watch the whole thing.)

[Jimmy the Dane]

Why don't we just have a department or agency that tells us what is the truth? We could call it the Agency and Truth and Trust. Then just make sure it is packed full of experts who can make calls on various things, even the controversial stuff (biologists for gender, etc.) and they can just tell us what to think. That would solve our problem.

[apedad]

Obviously you're joking (not funny BTW), but the Nazi's did try this with their Reichsministerium für Volksaufklärung und Propaganda (Reich Ministry for Public Enlightenment and Propaganda).

They controlled the content of the press, literature, visual arts, film, theater, music and radio (wiki).

Apparently, they were quite effective, for several years anyway.

[Jimmy the Dane]

Biden tried to do this too didnt he? That is telling....

[con_fuse9]

So did Trump but in a bit more subtle way.

[Brett Bellmore]

So subtle you'll have to explain it...

[Joe_dallas]

CU overturned mccain fiengold because it barred publication of truthful information (by unapproved individuals ) prior to 30 days (?) before an election.

Though somehow false information is okay to publish. Did any progressives object to the publication of false info such as CBS bogus killian memo's , hrc's bogus russian collusion,

[Brett Bellmore]

Ah, I'm pretty sure the CU decision did NOT hinge on the information being truthful. In fact, the decision approvingly quoted the Federalist papers to the effect that, "Factions should be checked by permitting them all to speak, see ibid., and by entrusting the people to judge what is true and what is false."

Here, have a look. Bet you can't back that up!

[Joe_dallas]

Brett
Concur

My recollection was that mccain feingold barred the publication of any derogatory information about a candidate irrespective of being accurate or false

[Brett Bellmore]

Nope. Didn't hinge on the information being derogatory, either. Just on it being about a candidate.

What it actually attempted to do was to shut up everybody but the candidates and officially recognized media outlets, by treating any money spent disseminating speech about political topics as a campaign donation subject to rather stringent limits.

The aims were two-fold. First, to shut those pesky interest groups up. And second, to safeguard politicians, by limiting challengers to an amount of spending that would be inadequate to successfully challenge an incumbent, who already had name recognition, and could anticipate a good deal of coverage from the officially exempted news organizations.

CU wasn't under legal fire because their movie was hostile to Clinton, though it was. They were under legal fire because it dared to mention Clinton, and they had the nerve to spend money promoting it.

[Joe_dallas]

Brett - thanks for the clarification/reminder

It does highlight that McCain feingold was a form of censorship and an incumbents protection act. Everyone should be leery of any form of censorship , ministry of truth etc

[Krayt]

The downside of the clever idea that any effort in favor of a candidate has a monetary value, and therefore may be banned because of campaign finance laws, or the candidate must declare it.

[ah....Clem]

Brett is actually correct that CU did not turn on the information being either false or derogatory.

Mark this date on your calendar.

[Stephen Lathrop]

And second, to safeguard politicians, by limiting challengers to an amount of spending that would be inadequate to successfully challenge an incumbent, who already had name recognition, and could anticipate a good deal of coverage from the officially exempted news organizations.

Nope. CU was intended to defang political accountability achieved by massed, small grass roots contributions. It had already been shown those could deliver potent amounts of money to a candidate who commanded a large and motivated following. That put corporate interests in jeopardy, unless they remained free to counter with unaccountable dark money, raised not from persons, but from corporate treasuries derived through commerce, in whatever amounts would be required.

Absent CU, this nation would not have a totally bought, special interest congress now.

Also, by, “the officially exempted news organizations,” you attack the notion of press freedom. American constitutionalism provided press freedom with an eye to making natural persons capable to organize their views and political opinions nationwide, no matter how extensive the nation became. Madison said that explicitly. Hamilton, Jefferson, and others echoed it.

The right wing, and the right wing court which handed down CU, do not like to see ordinary natural persons politically empowered to effectually influence Congress, even if it requires getting over a massive organizing hurdle to achieve it. The right wing preference is corporate plutocracy, and CU delivered it. Of course, corporate plutocracy has become a baleful force multiplier for the other anti-democratic elements built into American constitutionalism.

[F.D. Wolf]

The rationale behind New York Times v. Sullivan (1964) was that vigorous scrutiny of government was so critical to democracy, that some falsehoods just had to be tolerated, so the court created the "actual malice" standard, an almost insurmountable hurdle for a plaintiff to even establish civil liability. And as due process requires a much higher standard for criminal liability, this would indeed seem to create a functionally impossible standard for a conviction. "Actual malice beyond a reasonable doubt"? Would that even be high enough?

[The Margrave of Azilia]

How about getting rid of NYT v. Sullivan, instituting loser pays, and then making someone liable for defamation whether their false statement is about Joe Sixpack or a political candidate?

[bevis the lumberjack]

Virtually every political add ever has misinformation in it. And does anyone think this law will be used even-handedly, regardless of who is in power?

Might as well just outlaw political advertising if you’re gonna force them to be honest.

[vaadu]

We have 50+(states,territories,etc) election systems that are intentionally designed to make them impossible to fully audit.

Anyone who says they 'know' is saying they know the unknowable.

[con_fuse9]

And anyone that says a "full audit" is required doesn't know statistics.

The problem isn't words - the problem is that there are people willing to act on the words. Be it pizza-gate, BLM riots, or the Jan 6th riot.

Here's an idea - if you ban twitter from sensoring... then these same social media companies shouldn't be able to direct more content of the same lies. You want to direct political speech to someone? OK. You want to direct ONLY right wing or only left wing political speech, NOT OK.

[Toranth]

"Statistics" and "voting" are words that should rarely go together.

There's a very good reason we vote instead of take polls in the first place.

[con_fuse9]

But random statistical sampling can be used to show that the counting process was accurate. No need to verify every dog-catcher vote.

[Stephen Lathrop]

Unmentioned so far? The most dangerous kind of falsehood about elections—lies by defeated candidates and government officials about election results.

There is urgent need to deal with that, as the nation has recently discovered. Problem is, the accustomed constitutional framework for discussion will prove ill-suited. Even to understand the problem requires a broader frame of reference.

An extra-constitutional issue lies at the root of the problem. That is the fact that the result of a completed election, properly certified, is not ordinary speech, nor is it a proper matter of law, nor a government power, nor a right of the candidate or of his supporters, nor even an ordinary constitutional mandate. The election result is more than all those things; it is a sovereign decree, constituting government.

To understand that is to understand that the election result resides on the same high plane in American constitutionalism as the Constitution itself—which is another (more general) sovereign decree from the same source—the joint popular sovereignty of the American People.

That means, among other things, that just as neither legislation, nor any court decision, can amend the Constitution, neither can those methods legitimately alter a completed election result. Think about that. If a court lacks a power to address a purported election result, then there is no point in a process to take election outcomes to court. And there is no other matter in which a court has any power to constrain the sovereign, and thus no logical reason to suppose any court should have jurisdiction over what the sovereign People have done in an election.

In two cases, the sovereign People themselves are the relevant authorities. They must be the final arbiters of the legitimacy of election processes, and final judges of the actual results. Government process—including judicial process—cannot legitimately do that for the joint American popular Sovereign, anymore than government can amend the constitution by legislation.

That is logic likely to baffle customary American thinking about governance. Which is remarkable, because it is also originalist logic, with which the founders were more familiar than today's government experts tend to be. The founders structured American constitutionalism on the basis of that logic.

All that creates implications which I do not intend to try to work out in detail in this comment. Only take note that the logic of an affront to sovereignty differs notably from the logic of an affront to law. The former must be punished more harshly, and more arbitrarily than the latter.

That happens because sovereigns, by their nature, rule on the basis of unconstrained power. They must have that, because nothing less suffices to make a government at pleasure, which is the defining act of a sovereign. It follows that sovereigns cannot brook challengers, lest a challenge itself become a constraint. By definition and in practice, a sovereign constrained has ceased to be a sovereign in fact. Thus, any challenger which is not immediately suppressed has by continuation of its challenge already established itself as a rival for sovereignty. Sovereigns cannot afford to permit rivals.

By persisting in lies about election results, former President Trump has in fact commenced a rivalry with the American People for sovereignty over the nation. That needs to be recognized for the danger that it is. A means must be found to counter that kind of conduct with appropriately harsh punishment, sufficient to express memorably the sovereign's jealous defense of its own power. Whether any such means of punishment can be made to fit tidily into the structure of American constitutionalism will be a complicated question to resolve. I would like to see the authors try to discuss it.

[Brett Bellmore]

"In two cases, the sovereign People themselves are the relevant authorities."

You completely fail to address the obvious problem here, which is how do you establish that the sovereign People themselves have acted? By a vote? Why, then, you must have some sort of way of distinguishing a real vote result from a fraudulent one.

Which logically requires that the purported vote result must be susceptible to challenges.

I will gladly admit that Trump went too far in challenging the results. But the results have to be capable of being challenged, or they WILL be rigged sooner or later, and the rules prohibiting challenge used to prevent anything from being done about it.

[Stephen Lathrop]

Bellmore — No doubt that will be a widespread concern.

I suggest a two-class division among the parties, based on status and interest. The second class—designated the public servant class—would consist of office holders and candidates for office. Those would be identified and constrained by a sworn oath to uphold the Constitution, and to uphold every completed election result by word and deed at all times.

The first class would consist of all other citizens. They would be designated the sovereign class. They would not swear an oath, and would remain unconstrained. Processes to structure elections, draw voting districts, identify qualified voters, count votes, and carry out all other ministerial tasks necessary to conduct an election fit to satisfy the sovereign People would be done exclusively by members of that first class, formally acting in the sovereign People's name. Members of the first class would not swear the same duty of loyalty to the sovereign as would members of the second class (because the first class would be treated as embodying the sovereign, and thus incapable of acting against it). That would free members of the first class to act legitimately as the nation's critics of elections.

Members of the first class, the sovereign class, would be barred from holding any elected office, but would be free to give up their status in the sovereign class voluntarily (but permanently), to run for office if they chose to do it. Members of the second class, having sworn their oaths as loyal servants of the sovereign, would be barred for life from acting as members of the sovereign class.

With things thus arranged, service in political office would be understood properly not as a right, but as a gift from the sovereign people, bestowed at pleasure, and conferring if accepted a lifetime obligation of loyalty.

For their part, the sovereign People would thus become better organized to accomplish active control of their government. By dividing election participants by status and interests, conflicted loyalties from candidates for office would be better guarded against. The threat would be much reduced that an actual contest for sovereignty might grow out of a lost election.

Of course this is all right off the top of my head. More thought from more people would probably come up with something better. It would not be thoughtful at all, however, to suppose something along these lines is not needed.

[Stephen Lathrop]

You completely fail to address the obvious problem here, which is how do you establish that the sovereign People themselves have acted? By a vote? Why, then, you must have some sort of way of distinguishing a real vote result from a fraudulent one.

Which logically requires that the purported vote result must be susceptible to challenges.

Note that the logic underlying your reasoning is that government must retain power to trump sovereignty. Which stands American constitutionalism on its head. When Franklin famously said, “A republic if you can keep it,” the, “you,” meant the sovereign People, not the government.

[Stephen Lathrop]

Note also, Bellmore, that efficacious challenge to an election result only serves constructively prior to the election becoming final. In every election there must be a moment of finality, prior to the time the winner takes office.

It is during the interval between voting and that moment of finality that a legitimate election challenge might constructively apply. Thereafter, nothing but otherwise avoidable discord can result. Whatever process flaws led to a bad outcome can afterwards be examined constructively without time limit, to avoid repetitions. But there must be no hint that any process can alter a final election result after the deadline.