The Volokh Conspiracy
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This is part IV 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).
Forty-eight states and the District of Columbia have statutes that regulate the content of election-related speech. The statutes take one of two general forms: (1) statutes that directly target the content of election-related speech; and (2) generally applicable statutes that indirectly implicate election-related speech by prohibiting intimidation or fraud associated with an election. We analyze each of these statutory forms in the following sections, paying particular attention to how broadly or narrowly the statutes define the speech they target and what level of fault or intent they require for liability.
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[A.] Statutes that Directly Target the Content of Election-Related Speech
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[1.] False Statements about a Candidate
Sixteen states have statutes that expressly prohibit false statements about a candidate for public office [Alaska (2), California (2), Colorado, Florida (2), Hawaii, Louisiana, Mississippi, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, Washington, West Virginia, and Wisconsin]. . . .
[a.] Scope of Speech Covered
Three states, Alaska, California, and Washington have statutes that prohibit false statements in political ads or campaign communications that constitute defamation. These statutes expressly state that liability for defamation applies in the context of political speech . . . These statutes are unlikely to raise novel questions of First Amendment law because their scope of coverage is limited to statements that meet the requirements of a defamation claim.
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[The remaining statutes in this category] impose liability for false statements about a candidate, regardless of whether the statement meets the specific requirements of defamation. These laws raise potential First Amendment concerns, as the Supreme Court has refused to sustain regulations of false speech based solely on a compelling state interest in "truthful discourse" without additional fraudulent or defamatory effects. [Colorado, Louisiana, Utah, West Virginia, and Wisconsin] create broad liability for false statements made about a candidate in any medium of communication, which triggers additional concerns. For example, West Virginia prohibits any person from knowingly making "any false statement in regards to any candidate." Colorado's statute is only slightly more narrow; it prohibits any person from knowingly making "any false statement designed to affect the vote on any issue submitted to the electors at any election or relating to any candidate for election to public office." Nine other states require that a false statement be about a specific topic, be made by a specific person, be published in a specific medium, or occur in a specific time frame. For example, Florida has a candidate-specific prohibition on false representations of military service. Mississippi prohibits false statements by any person about a candidate's "honesty, integrity, or moral character" in their private life, while North Carolina's prohibition is not based on falsity; instead, the state prohibits the publication of any "derogatory" statement made anonymously.
[A second provision in the North Carolina statute cited above, which criminalizes the publication of "derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity," was the subject of a recent constitutional challenge in Grimmett v. Freeman. In Grimmett, the Fourth Circuit enjoined the state from enforcing this provision, finding that the plaintiffs had made "a strong showing that they are likely to succeed on the merits of their First Amendment challenge." In doing so, the Fourth Circuit concluded that the statute could criminalize protected speech if the "derogatory report" were made with reckless disregard of its truth or falsity, regardless of whether the report was in fact false. In Eugene's post on the decision, he argues that the phrase "reckless disregard" should be read as implicitly requiring falsehood both for the knowledge and the reckless disregard prongs, which would eliminate the concern that the statute could punish truthful statements. A full appeal will be heard by the Fourth Circuit in December.]
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Fourteen states [Alaska, California, Colorado, Florida (2), Hawaii, Louisiana, Mississippi, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, West Virginia, and Wisconsin] have statutes that prohibit false statements about a candidate made knowingly or with reckless disregard as to the truth, mirroring the "actual malice" defamation standard from New York Times v. Sullivan. Four states, however, have statutes that deviate from the Sullivan standard, potentially raising First Amendment issues. Louisiana imposes liability for false statements that a speaker should "reasonably know" to be false. [Florida, Mississippi, and North Carolina] have an even lower bar, imposing strict liability for certain false statements about a candidate without regard to the speaker's level of knowledge.
Alaska, California, Colorado and North Carolina have statutes that also require that the speaker must intend to injure a candidate, deceive voters, or affect an election before liability can be imposed. Such requirements likely help to insulate these statutes from a First Amendment challenge based on the failure to provide the necessary "breathing space" for speakers. For example, California requires both that the statement be "materially deceptive" and that the statement be distributed "with the intent to injure the candidate's reputation or to deceive a voter into voting for or against the candidate." Utah, West Virginia, and Wisconsin impose liability if the false statement is either intended to affect an election or merely has that effect.
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Notably for First Amendment purposes, California allows candidates alleging a violation of the state's law against "materially deceptive audio or visual media" to seek injunctive relief preventing distribution of the allegedly deceptive media. This form of relief, because it acts as a prior restraint on speech, is likely to raise serious First Amendment concerns.
[2.] False Statements about Ballot Measures
Fourteen states [Colorado, Connecticut, Idaho, Louisiana, Maryland, Minnesota, Mississippi, Nevada, New Mexico, Ohio (2), South Dakota, Texas, Utah (2), and Wisconsin] have statutes that prohibit false statements about a ballot measure, proposal, referendum, amendment, or petition before the electorate.
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[a.] Scope of Coverage
Most of these statutes define their coverage very broadly. For example, Colorado's statute prohibits the communication of "any false statement designed to affect the vote on any [ballot] issue submitted to the electors at any election." Maryland, Minnesota, and Ohio use similarly broad language, but limit their coverage to false statements about petitions before the
Electorate. . . .
By definition, statutes that regulate false statements about ballot measures are not limited to speech that harms a candidate (or another person). As a result, they rest on a different government interest than the protection of reputation that has traditionally justified government restrictions on defamatory speech. Accordingly, the government's interest is likely to be less weighty in a court's evaluation of whether the statute passes First Amendment muster. In State ex rel. Public Disclosure Commission v. 119 Vote No! Committee, for example, the Washington Supreme Court . . . found that the state's reliance on defamation law as a justification for "intrusion into public debate" about ballot measures [was] misplaced [and that] the Washington law could not be justified by a compelling state interest. . . .
Most states regulating false statements about ballot measures impose liability only if the speaker knew at the time of publication that the information was false. However, as with state statutes penalizing false statements about candidates for office, multiple states either impose liability for constructive knowledge of falsity [Louisiana and Nevada] or apply strict liability without regard to whether the speaker knew or should have known the statement was false [Texas and Utah].
Thirteen states have statutes that prohibit knowingly false statements about a ballot measure, proposal, referendum, or petition before the electorate made knowingly or recklessly. Most of these statutes require that the defendant know, at the time of publication, that the proscribed information is false (or act with reckless disregard as to its falsity). Many statutes are poorly drafted, however, and some may impose liability if the defendant knowingly or recklessly published, broadcast, or circulated the false information, regardless of the person's state of knowledge regarding the falsity of the statement itself. For example, Idaho prevents any person from "knowingly printing, publishing, or delivering to any voter . . . a document" containing a misstatement of a proposed ballot measure or any false or misleading information about the ballot measure.
Moreover, some state statutes forego the requirement of specific knowledge completely. Louisiana forbids false statements about ballot measures when the speaker should be "reasonably expected to know" that the statement is false. Nevada imposes a similar standard, prohibiting the misrepresentation of the content of a ballot measure or petition "under circumstances amounting to criminal negligence." Texas and Utah have adopted a form of strict liability for false statements about ballot measures.
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Each state prohibiting a false statement about ballot measures treats a violation of the statute as a criminal matter, with the responsible party subject to potential imprisonment or criminal fines . . . Utah is the only state to also treat a false statement about ballot measure as a civil infraction, creating a civil right of action for a registered voter to seek the removal of a candidate who was directly responsible for producing or disseminating the false statement.
[3.] False Statements about Voting Requirements and Procedures
Thirteen states [California, Connecticut (2), Hawaii (2), Maryland, Minnesota, Missouri, Montana, New Mexico, New York, Oklahoma, Rhode Island, Tennessee, and Virginia] have statutes that prohibit false statements about voting requirements or procedures.
[a.] Scope of Coverage
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Although these statutes do not rest on the state's interest in protecting against reputational harms arising from defamatory falsehoods, the state does have a compelling interest in preserving fair and honest elections. False statements about voting requirements or procedures can be particularly harmful to election administration and pose a serious risk of disenfranchising voters. State laws banning knowing falsehoods calculated to deceive someone about when to vote would seem to directly promote this interest. As the Supreme Court recently remarked in dicta in Minnesota Voters Alliance v. Mansky, "[w]e do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures."
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Each of the thirteen states with statutes prohibiting false statements about voting requirements or procedures impose liability only if the speaker knew at the time of publication that the information was false or acted recklessly in publishing the false information. . . . However, Connecticut and Hawaii have additional statutes imposing strict liability for any false statement about voting requirements or procedures regardless of whether the speaker knows or has reason to know of the statement's falsity. [These statutes that impose strict liability are almost certainly unconstitutional.]
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[We analyze the remaining categories of statutes that directly target the content of election-related speech as well statutes that indirectly implicate election-related speech by prohibiting intimidation or fraud associated with an election in our full paper.]