First Amendment Limits on State Laws Targeting Election Misinformation, Part IV
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.
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
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