The Volokh Conspiracy
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This is part III in a series of posts discussing First Amendment Limits on State Laws Targeting Election Misinformation, 20 First Amend. L. Rev. 291 (2022). What follows is an excerpt from the article (minus the footnotes, which you will find in the full PDF).
The Supreme Court has not directly addressed whether election-related lies (or other forms of election misinformation) can be regulated by the government without violating the First Amendment. As a result, while the Court's First Amendment decisions provide a general framework for evaluating the constitutionality of state election-speech statutes, they leave a number of difficult issues unresolved, including whether election-related speech enjoys greater or lesser constitutional protection than speech in other contexts and whether the government has a sufficiently compelling—or even important— interest in curtailing or eliminating various unsavory election-speech practices. Our goal here is not to fully resolve these uncertainties, but merely to highlight the constitutional challenges current state statutes are likely to face and to potentially guide future legislative efforts in this area.
[A.] Determining the Appropriate Level of Judicial Scrutiny
As with so much of First Amendment law, the level of judicial scrutiny to be applied usually determines the outcome of the case, which is why so much of the criticism of the Supreme Court's election-speech jurisprudence is focused on the Court's conflicting signals regarding the appropriate level of scrutiny to be applied to statutes that restrict speech in the context of political campaigns and elections.
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State laws regulating election misinformation unquestionably do so based on the content of the speech. Under long-established First Amendment doctrine, content-based restrictions on speech are subject to strict scrutiny unless the speech falls within one of the few narrowly defined categories of speech that are generally considered to be outside the First Amendment's protection such as defamation, fraud, and true threats. Prior to 2012, when the Supreme Court decided United States v. Alvarez, state legislatures might be forgiven for thinking that lies (at least intentional ones) also fell outside the First Amendment's protection, as some commentators and even the Supreme Court had suggested. Justice Kennedy's plurality opinion in Alvarez, however, made clear that government attempts to regulate false statements, even intentional ones, are not exempt from First Amendment scrutiny.
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For constitutional scholars, much of the recent debate over government efforts to restrict false campaign speech has focused on whether there is (or should be) a sphere of election activity where the standard First Amendment approach of applying strict scrutiny to content-based regulations does not apply. Frederick Schauer and Richard Pildes call this idea "electoral exceptionalism," which posits that "elections should be constitutionally understood as (relatively) bounded domains of communicative activity" where "it would be possible to prescribe or apply First Amendment principles to electoral processes that do not necessarily apply through the full reach of the First Amendment." According to Schauer and Pildes, "[i]f electoral exceptionalism prevails, courts evaluating restrictions on speech that is part of the process of nominating and electing candidates would employ a different standard from what we might otherwise characterize as the normal, or baseline, degree of First Amendment scrutiny."
James Weinstein has been particularly forceful in arguing that the government should have more authority to regulate political speech to promote the fairness and efficiency of elections than it has to regulate "public discourse" generally. According to Weinstein, "[w]hile government regulation of the content of speech in the domain of public discourse must be strictly limited for this domain to accomplish its core democratic purpose, in other settings, pervasive government management of various activities–including speech–is essential if government is to accomplish its various functions." For Weinstein, elections are just such a government-managed domain where it "set[s] the time for an election, designat[es] polling places, design[s] the ballot, provid[es] voting apparatus, count[s] the ballots, and announc[es] the results."
As a descriptive matter, Weinstein is surely correct that elections are highly structured domains. However, the idea that because the government is already so deeply involved in managing elections that it should therefore be given leeway to engage in content-based regulation of speech in the election domain is more contestable. Nevertheless, there is some evidence that just such a carve out already exists in the Court's decisions upholding regulations in the election sphere that would almost certainly be impermissible if applied in the general domain of public discourse, including cases that permitted the government to set limits on who can appear on a ballot; how voters can express themselves at the ballot box; and what types of electioneering activities can take place near polling places.
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[B.] One Size Does Not Fit All
For a content-based regulation of speech to pass strict scrutiny, the government must demonstrate that the law is "narrowly tailored" to serve a "compelling state interest." While it is widely assumed that the application of strict scrutiny invariably results in the restriction on speech being declared invalid, there are situations—including in the election speech context—where courts have upheld content-based restrictions on speech. Nevertheless, even these cases make clear that only narrowly tailored laws that address concrete harms are likely to pass constitutional muster under either strict or intermediate scrutiny.
On the question of whether the government has a sufficient interest in regulating election misinformation, it should be noted that the Supreme Court has held [in Eu v. San Francisco Democratic Central Committee] that the government has a "compelling interest" in preserving fair and honest elections and in preventing foreign influence in elections. A number of lower courts have also concluded that the government has a compelling interest in regulating election falsehoods in order to preserve the "integrity of the electoral process"; to protect "voters from confusion and undue influence"; and to "ensur[e] that an individual's right to vote is not undermined by fraud in the election process."
Demonstrating a compelling interest, however, is just the first hurdle the government must overcome. A state must also show that its restrictions on speech are "actually necessary" to achieve the state's interest, and that the regulation is narrowly crafted. In other words, the state must walk a fine line in establishing "a direct causal link between the restriction imposed and the injury to be prevented," while at the same time ensuring that its approach is neither underinclusive nor overbroad. In making these evaluations, courts will examine, among other things, the scope of speech covered by the statute; the degree of fault, if any, required before liability attaches; and the procedural safeguards the state provides.
[1.] Scope of Speech Covered
States are most likely to survive First Amendment scrutiny when they act to restrict false speech that falls within, or is very closely related to, one of the categories of speech that are already recognized to be outside First Amendment protection. The most fertile of these categories for our purposes are likely to be defamation, fraud, and true threats.
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While a number of states have statutes that merely confirm that defamation law applies to political ads or campaign communications, other states extend liability to false statements regardless of whether the statement meets the requirements of defamation. States in the latter category must be careful of attempting to stretch their statute's similarity to defamation law too far, as the Commonwealth of Massachusetts did in [Commonwealth v. Lucas] where it made what the court characterized as "the rather remarkable argument that the election context gives the government broader authority to restrict speech" that is false but not necessarily defamatory.
In Lucas, the state argued that its statute, which punished false statements about ballot questions and false statements by a candidate about himself designed to enhance his own candidacy, was no different than the state's common law of defamation, but the court saw those distinctions as constitutionally meaningful. A false statement of fact that does not actually harm an individual's reputation is not defamatory; an essential function of defamation law is to protect reputation by "safeguard[ing] the dignity of citizens."
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Another category of unprotected speech that the states may find some shelter in is fraud. While there are a variety of statutory and common-law definitions for fraud, generally, fraud requires a false representation of a material fact made knowingly and with the intent to mislead the listener, and that the fraudulent speech or action succeeded in doing so. Fraudulent speech in the election context can create a particularly pernicious set of harms, including distortion of the electoral process; lowered quality of discourse; voter alienation and distrust; and deterrence of qualified candidates from seeking office.
Central to any finding of fraud is that the false representation is material; in other words, that the information provided or omitted is likely to have "an effect on the likely or actual behavior of the recipient of the alleged misrepresentation." As the Supreme Court explained in Universal Health Servs., Inc. v. United States, the materiality requirement in federal fraud statutes "descends from 'common-law antecedents'" and "[i]ndeed, 'the common law could not have conceived of 'fraud' without proof of materiality.'" This is not to say that there is universal agreement on what is required for a false or misleading statement to be material, especially in the context of political fraud, where "determin[ing] the likelihood that a political fraud will influence election outcomes is challenging because such inquiries are contextual and require reference to what sorts of information are relevant to the deliberative body."
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With regard to the government's interest in preventing fraud on the electorate, the Supreme Court has stopped short of calling the interest "compelling," but has noted that it "carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large." Lower courts have also been skeptical of the argument that false campaign speech is a form of election fraud. Echoing Justice Louis Brandeis' admonition in Whitney v. California that "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence," many courts have been especially loath to allow the states to punish false election speech when they see counterspeech as an effective remedy.
[c. True Threats]
A third category of unprotected speech that some state election statutes might fall under, particularly statutes that prohibit voter intimidation, is true threats. "True threats" encompass situations "where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." As the Court noted in Virginia v. Black, "[t]he speaker need not actually intend to carry out the threat," but instead the "prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'"
The challenge of determining whether election-related speech amounts to a true threat can be a difficult one, both in terms of assessing whether the words in question are sufficiently threatening but also whether the speaker intend to convey a threat. Explicit threats of violence aimed at stopping individuals from voting would certainly qualify, but intimidation can occur through less direct means, including following voters to, from, or within the polling place; spreading false information about voter fraud, voting requirements, or related criminal penalties; aggressively approaching voters' vehicles or writing down voters' license plate numbers; and aggressively questioning voters about their qualifications to vote. The Supreme Court has never stated whether threats involving something other than violence fall within the true threats doctrine.
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[2.] Fault Required
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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. In the context of defamation, for example, the Supreme Court has stated that states cannot impose liability for defamatory speech on matters of public concern without some evidence of fault on the part of the speaker, either in the form of actual malice (i.e., the speaker had knowledge of falsity at the time of publication or acted with reckless disregard as to the truth) or negligence (i.e., the speaker failed to act reasonably and should have known or discovered that the information was false). The Court has applied similar fault requirements to other types of speech-based torts as well, including the disclosure of private facts, false light, and infliction of emotional distress torts.
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Although the Supreme Court's caselaw is less definitive on the question of fault in fraud cases, the weight of authority suggests that a finding of fraud in the election-speech context also must be predicated on a showing of actual malice. In Alvarez, for example, Justice Kennedy explained: "[W]hen considering some instances of defamation and fraud . . . the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood." Justice Alito, in his dissent in Alvarez, appears to acknowledge the same point, writing that "[w]hile we have repeatedly endorsed the principle that false statements of fact do not merit First Amendment protection for their own sake, we have recognized that it is sometimes necessary to 'exten[d] a measure of strategic protection' to these statements in order to ensure sufficient 'breathing space' for protected speech."
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With regard to true threats, the question of fault is unsettled. The Supreme Court has not definitively addressed whether the government must show fault in order to punish true threats, and there is a longstanding split in the circuits on this issue. Some circuit courts have held that the First Amendment requires only that a speaker must "intend to communicate particular words—words that the fact finder later determines qualify objectively as a true threat; under this standard, the speaker need not intend to threaten or intimidate the victim(s) by speaking the words." Other circuits, however, have held that the First Amendment requires that the speaker must have "made the statements intending that they be taken as a threat." The Supreme Court could have resolved this issue in Elonis v. United States, a case involving a prosecution under the federal threat statute for posting "graphically violent" rap lyrics on Facebook, but unfortunately the Court remanded the case based solely on a question of statutory interpretation. "Given our disposition" of the case, the Court concluded, "it is not necessary to consider any First Amendment issues."
Nevertheless, it would be wise for states that seek to justify the regulation of election-related speech on the basis that the speech falls within the true threats category to include a subjective intent requirement in their statutes. The Supreme Court has been careful in circumscribing the scope of speech that falls outside the First Amendment's protections; as we saw with the other categories of unprotected speech, that narrowing is achieved, in part, through heightened standards of fault. Such narrowing seems especially important for election-related speech that might fall within the true threats category, which unlike defamation and fraud, has no requirement of falsity. Statutes that make the intent of the speaker irrelevant run a serious risk of chilling protected speech, as "speakers who do not intend for their speech to be threatening will still censor themselves, fearful that a reasonable person may construe the communication as threatening."
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[3.] Procedural Safeguards
Even statutes that target election misinformation within an unprotected category of speech may still raise First Amendment problems if they lack adequate procedural safeguards. These safeguards are particularly important in the election-speech context, where there is already considerable tension between the need to preserve the functioning and legitimacy of the electoral system and the danger of "allow[ing] courts and/or other regulatory bodies to be used as political weapons" in the rough and tumble of election campaigns.
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A threshold question for any statute regulating election-related speech is who is authorized to sue under the statute or otherwise initiate an enforcement action. Traditionally, only those who have suffered a legally cognizable injury have standing to bring a claim. Under defamation law and other speech-based torts, for example, this usually means the individual who suffered reputational harm or other injury from the speech in question. In an effort to vindicate broader, communal interests in fair and honest elections, many of the statutes we reviewed allow anyone to file a lawsuit or initiate a claim alleging a violation of the statute. This approach raises the risk that these laws will be used for political purposes and thus can be "immensely problematic."
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The remedies a state provides can also be an important factor in whether its regulatory scheme is constitutional. Under existing First Amendment doctrine, some remedies for speech-based harms are more problematic than others. At the top of the list is injunctive relief that orders a speaker to refrain from speaking or to correct a previous statement. An injunction to stop speaking is a form of prior restraint, which the Supreme Court has long held is presumptively unconstitutional. The idea that the government can punish speech after it occurs but cannot restrict speech before it is uttered is evident in much of First Amendment jurisprudence. As Justice Blackmun wrote in Southeast Promotions, Ltd. v. Conrad, "Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand."
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In summary, although a number of difficult First Amendment issues remain unresolved, including whether election-related speech enjoys greater or lesser constitutional protection than speech in other contexts, the cases do provide a path forward for states to adopt laws aimed at preserving the integrity of the electoral process. These laws, however, must be narrowly crafted and the states will need to be careful in terms of the scope of speech they target, the degree of fault they require, and the procedural safeguards they provide.