The Volokh Conspiracy

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Free Speech

One of the Criminal Charges Against the Loudoun County Superintendent Is Likely Unconstitutional


AP reports:

The former superintendent of a northern Virginia school system [Scott Ziegler] has been indicted on three misdemeanor charges by a special grand jury that investigated the response to two sexual assaults committed by a student last year….

The three misdemeanors against Ziegler include one count of false publication, one count of prohibited conduct related to alleged retaliation against a teacher, and one count of penalizing an employee for a court appearance.

The indictments, unsealed Monday, include few details, but the false publication count appears to relate to a statement Ziegler made in June 2021 denying that there had been any assaults occurring in school bathrooms. In fact, the first sexual assault occurred a month earlier in a bathroom stall at Stone Bridge High School, and emails show Ziegler had been made aware of it.

Ziegler later said he misunderstood the question….

The trouble is that the false publication statute likely violates the First Amendment (see also this article by Quin Hillyer [Washington Examiner]). The statute reads,

Any person who knowingly and willfully states, delivers or transmits by any means whatever to any publisher, or employee of a publisher, of any newspaper, magazine, or other publication or to any owner, or employee of an owner, of any radio station, television station, news service or cable service, any false and untrue statement, knowing the same to be false or untrue, concerning any person or corporation, with intent that the same shall be published, broadcast or otherwise disseminated, shall be guilty of a Class 3 misdemeanor.

Now if this were limited to false statements that tend to seriously damage someone's reputation, this would be a criminal libel statute, which is constitutional (see this recent First Circuit case and this earlier post of mine). But this also applies to statements about people and corporations that don't damage reputation, and indeed to false statements about oneself (since that's a statement about "any person").

And in U.S. v. Alvarez (2012), where the Court struck down the Stolen Valor Act, the Court concluded that false statements about oneself—and indeed many other kinds of false statements—are generally constitutionally protected. Under Alvarez's logic, the First Amendment would likewise protect many statements about other people that don't damage reputation or otherwise harm the person being talked about (a bit more on that below).

This means that the Virginia statute is unconstitutionally overbroad, because it covers a substantial amount of constitutionally protected speech. Narrower statutes banning specific kinds of lies are indeed constitutional. (I set aside the question when honest mistakes, whether reasonable or unreasonable, can be made civilly actionable or even criminalized; we're talking here about knowing falsehoods.) For instance,

  1. As I mentioned, laws banning lies that damage another's reputation are constitutional.
  2. So are laws banning lies that aim to defraud people of money (including, for instance, in charitable fundraising).
  3. So are laws banning lies within the context of commercial advertising.
  4. So are laws banning lies under oath.
  5. So (probably) are laws banning lies to government officials, whether police officers or otherwise, with regard to matters that they are dealing with in an official capacity; one example is 18 U.S.C. § 1001, which generally bans lies to federal government officials. (I looked to see whether Virginia has such a law as to statements to Virginia officials, and couldn't find it, and in any case there is no such charge in this indictment.)
  6. So (almost certainly) are laws that ban false statements about particular people and that are highly offensive and therefore distressing (this is the so-called "false light" tort), even if they don't damage reputation.

There are other examples as well, so a good many lies are indeed punishable. But the particular Virginia statute that's being used here is likely unconstitutionally overbroad. [UPDATE: Just to be clear, this means that it violates the First Amendment on its face, and thus can't be applied to Ziegler or to anyone else, even if Ziegler's speech might have been punishable using a narrower statute.] And while I can imagine a court trying to narrow the statute by limiting it to reputation-damaging lies, I don't think that would help this prosecution: I don't think Ziegler's statement was damaging the reputation of anyone he was talking about.

Note that I'm not speaking here to the other crimes that Ziegler is charged with, or to any other crimes with which he might conceivably be charged.