Commonwealth v. Lucas

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11830

COMMONWEALTH vs. MELISSA LUCAS.

Suffolk. May 7, 2015. - August 6, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Constitutional Law, Freedom of speech and press, Elections.
Statute, Validity.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 11, 2015.

The case was reported by Duffly, J.

Peter Charles Horstmann for the defendant.
Amy Spector, Assistant Attorney General, for the
Commonwealth.
The following submitted briefs for amici curiae:
Andrew Sellars & Christopher Bavitz for New England First
Amendment Coalition & others.
H. Reed Witherby, Matthew R. Segal, & Sarah R. Wunsch for
American Civil Liberties Union of Massachusetts.
Ben Robbins & Martin J. Newhouse for New England Legal
Foundation.
Russell C. Reeves, Kathryn M. Harrison, & Austin C. Reeves,
pro se.
Ilya Shapiro & Gabriel Latner, of the District of Columbia,
& David Duncan for Cato Institute.
 2

CORDY, J. This case concerns the constitutionality of

G. L. c. 56, § 42 (§ 42), which criminalizes certain false

statements about political candidates or questions submitted to

voters.1 Melissa Lucas was charged with violating the statute

after her political action committee published brochures

criticizing a candidate for public office. For the reasons set

forth below, we conclude that § 42, on its face, is inconsistent

with the fundamental right of free speech guaranteed by art. 16

of the Massachusetts Declaration of Rights. Accordingly, the

statute is invalid and the criminal complaint charging Lucas

with violating it must be dismissed.2

1
General Laws c. 56, § 42 (§ 42), provides:

"No person shall make or publish, or cause to be made
or published, any false statement in relation to any
candidate for nomination or election to public office,
which is designed or tends to aid or to injure or defeat
such candidate.

"No person shall publish or cause to be published in
any letter, circular, advertisement, poster or in any other
writing any false statement in relation to any question
submitted to the voters, which statement is designed to
affect the vote on said question.

"Whoever knowingly violates any provision of this
section shall be punished by a fine of not more than one
thousand dollars or by imprisonment for not more than six
months."
2
We acknowledge the amicus curiae briefs submitted by the
American Civil Liberties Union of Massachusetts; the Cato
Institute; the New England Legal Foundation; the New England
First Amendment Coalition, Boston Globe Media Partners, LLC,
Massachusetts Newspaper Publishers Association, Hearst
 3

1. Background. In October, 2014, Jobs First Independent

Expenditure Political Action Committee (PAC) published and

distributed brochures urging voters to vote against Brian

Mannal, the incumbent candidate for State Representative for the

Second Barnstable District. In the brochures, the PAC made

several statements about Mannal, including:

"Brian Mannal chose convicted felons over the safety of our
families. Is this the kind of person we want representing
us?";

"Helping Himself: Lawyer Brian Mannal has earned nearly
$140,000 of our tax dollars to represent criminals. Now he
wants to use our tax dollars to pay defense lawyers like
himself to help convicted sex offenders"; and

"Brian Mannal is putting criminals and his own interest
above our families."

On October 21, 2014, approximately two weeks prior to the

general election, Mannal responded by filing an application for

a criminal complaint in the Barnstable Division of the District

Court Department against Lucas, the PAC's chairwoman and

treasurer. In the application, Mannal alleged that Lucas

published knowingly false statements designed to defeat Mannal's

candidacy in violation of § 42. Mannal held a press conference

announcing the filing and published a media advisory further

Television, Inc., New England Newspaper and Press Association,
Inc., and New England Society of Newspaper Editors; and Russell
C. Reeves, Kathryn M. Harrison, and Austin C. Reeves.
 4

detailing the reasons for the criminal complaint against Lucas

and suggesting that the brochures "could put her behind bars."

On October 27, 2014, Lucas filed a motion to dismiss the

application on the ground that § 42 is an unconstitutional

restraint on free speech. A probable cause hearing was

scheduled for November 20, 2014 -- approximately two weeks after

the general election. Mannal won reelection by a margin of 205

votes. After the election, Lucas and the PAC filed an emergency

motion for a preliminary injunction in the United States

District Court for the District of Massachusetts seeking to have

the probable cause hearing stayed and § 42 declared

unconstitutional. At the preliminary injunction hearing, the

PAC presented evidence that it had refrained from airing a radio

advertisement as a result of Mannal's application and that it

would continue to refrain from certain political advocacy until

the constitutionality and scope of § 42 were clarified.3 A judge

in the Federal court denied relief pursuant to the doctrine of

abstention. See Younger v. Harris, 401 U.S. 37, 41 (1971)

3
The withheld advertisement stated: "As a mother, I'm
worried about how State Rep. Brian Mannal is making my family
less safe. He filed a bill to make GPS monitoring optional for
some sex offenders. That's a bipartisan public safety law that
he's trying to undo. Then, he sponsored a bill to help sex
offenders qualify for taxpayer funded lawyers. That's the last
thing I want my tax dollars spent on. I want a State
Representative who will keep my family safe -- not help sex
offenders. And that's why I'm voting against Brian Mannal."
 5

("national policy forbid[s] federal courts to stay or enjoin

pending state court proceedings except under special

circumstances"). The United States Court of Appeals for the

First Circuit affirmed.

After a transfer of venue in the State criminal

proceedings, a probable cause hearing was held in the Falmouth

Division of the District Court Department on December 18, 2014 -

- more than one month after the election. Following the

hearing, a clerk-magistrate issued a criminal complaint formally

charging Lucas with two counts of violating § 42. Lucas has not

yet been arraigned and there has not been a ruling on her motion

to dismiss. In February, 2015, Lucas filed a petition in the

county court pursuant to G. L. c. 211, § 3, seeking relief from

the criminal complaint on the ground that § 42 is

unconstitutional. The single justice stayed the underlying

criminal proceedings and reserved and reported the matter to the

full court.

2. Discussion. a. Threshold questions. The Commonwealth

argues that we should decline to address the constitutionality

of § 42 in this case.4 The Commonwealth's first argument is that

4
The Commonwealth is represented in this proceeding by the
Attorney General pursuant to G. L. c. 12, § 3. The district
attorney handling the prosecution of Lucas declined to file a
brief, but submitted a letter requesting that the court
determine the constitutionality of § 42.
 6

the extraordinary relief afforded by G. L. c. 211, § 3, is

unavailable because Lucas has an alternative remedy in the form

of a motion to dismiss the criminal complaint. See, e.g., Maza

v. Commonwealth, 423 Mass. 1006, 1006 (1996) ("request for

relief under G. L. c. 211, § 3, is properly denied where the

petitioning party has or had adequate and effective avenues

other than G. L. c. 211, § 3, by which to seek and obtain the

requested relief"). This argument is unpersuasive because,

"where, as here, a single justice of this court reserves and

reports an interlocutory matter to this court, we grant the

litigant full appellate review." Burke v. Commonwealth, 373

Mass. 157, 159 (1977).

Alternatively, the Commonwealth argues that we should

dismiss the complaint against Lucas on statutory, rather than

constitutional, grounds because the statements at issue were

opinions outside the scope of § 42. See Cole v. Westinghouse

Broadcasting Co., 386 Mass. 303, 312, cert. denied, 459 U.S.

1037 (1982) (opinions could not be proved false and therefore

were not actionable as libel); Aldrich v. Boyle, 328 Mass. 30,

32 (1951) (political advertisement was "customary type of

hortatory appeal commonly made to voters at election time" and

not actionable). The Commonwealth recites the familiar rule

that we decline to consider the constitutionality of a statute

that does not criminalize a defendant's conduct. See, e.g.,
 7

Commonwealth v. Robertson, 467 Mass. 371, 381 (2014). Yet, in

some contexts, resolving a case on narrower grounds may serve to

perpetuate the chilling of speech protected by the First

Amendment to the United States Constitution and art. 16, as

amended by art. 77 of the Amendments. See generally

Commonwealth v. Bohmer, 374 Mass. 368, 373 (1978). As the

United States Supreme Court has observed, this concern may be

particularly acute in the context of an election:

"It is well known that the public begins to concentrate on
elections only in the weeks immediately before they are
held. There are short timeframes in which speech can have
influence. The need or relevance of the speech will often
first be apparent at this stage in the campaign. The
decision to speak is made in the heat of political
campaigns, when speakers react to messages conveyed by
others. A speaker's ability to engage in political speech
that could have a chance of persuading voters is stifled if
the speaker must first commence a protracted lawsuit. By
the time the lawsuit concludes, the election will be over
and the litigants in most cases will have neither the
incentive nor, perhaps, the resources to carry on, even if
they could establish that the case is not moot because the
issue is 'capable of repetition, yet evading review.'"

Citizens United v. Federal Election Comm'n, 558 U.S. 310, 334

(2010), quoting Federal Election Comm'n v. Wisconsin Right To

Life, Inc., 551 U.S. 449, 462 (2007).

These observations have substantial force here. Assuming,

arguendo, that § 42 proscribes only statements of fact as

opposed to opinion and the statements at issue constituted

opinion, a political candidate was nonetheless able to use those

statements as the basis for an application for a criminal
 8

complaint (and ultimately for its issuance). The candidate then

used the application as a political tool not only to discredit

the statements but also to persuade the PAC to refrain from

airing a political advertisement shortly before the election.

Although Lucas filed a motion to dismiss the application, Mannal

already had won the election by a narrow margin by the time of

the probable cause hearing. Thus, even if the application had

been dismissed, the damage was already done. See 281 Care Comm.

v. Arneson, 766 F.3d 774, 790 & n.12 (8th Cir. 2014), cert.

denied, 135 S. Ct. 1550 (2015) ("State has constructed a process

that allows its enforcement mechanisms to be used to extract a

cost from those seeking to speak out on elections, right at the

most crucial time for that particular type of speech. And if

the allegations turn out to be unfounded, there is no

possibility of timely remedy" [citation omitted]).

Importantly, this precise scenario is capable of repetition

yet constantly evading review on the Commonwealth's theory that

§ 42 does not apply to the particular facts of a given case.

This is so because anyone may initiate a complaint under § 42

and, in so doing, create lingering uncertainties of a criminal

investigation and chill political speech by virtue of the

process itself. See United States v. Alvarez, 132 S. Ct. 2537,

2553 (2012) (Breyer, J., concurring) ("threat of criminal

prosecution for making a false statement can inhibit the speaker
 9

from making true statements, thereby 'chilling' a kind of speech

that lies at the First Amendment's heart"). See also Susan B.

Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014)

(political organization had standing to challenge

constitutionality of statute criminalizing false campaign

speech). Because "a statute which chills speech can and must be

invalidated where its facial invalidity has been demonstrated,"

Citizens United, 558 U.S. at 336, we decline to dismiss this

case on statutory grounds without first considering whether the

statute is, in fact, constitutional.

b. Constitutionality of § 42. i. Protection of political

speech. Our constitutional system "presupposes that right

conclusions are more likely to be gathered out of a multitude of

tongues, than through any kind of authoritative selection. To

many this is, and always will be, folly; but we have staked upon

it our all.'" New York Times Co. v. Sullivan, 376 U.S. 254, 270

(1964), quoting United States v. Associated Press, 52 F. Supp.

362, 372 (S.D.N.Y. 1943).5 As a general proposition, therefore,

any attempt by the government to restrict speech "because of its

message, its ideas, its subject matter, or its content" is

5
See art. 16 of the Massachusetts Declaration of Rights, as
amended by art. 77 of the Amendments ("The right of free speech
shall not be abridged"); First Amendment to the United States
Constitution (First Amendment) ("Congress shall make no law
. . . abridging the freedom of speech").
 10

presumptively invalid and the burden is on the government to

establish its constitutionality. Alvarez, 132 S. Ct. at 2543-

2544, quoting Ashcroft v. American Civil Liberties Union, 535

U.S. 564, 573 (2002). See Mendoza v. Licensing Bd. of Fall

River, 444 Mass. 188, 197 n.12 (2005). These principles have

their "'fullest and most urgent application' to speech uttered

during a campaign for political office." Arizona Free Enter.

Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2817

(2011), quoting Eu v. San Francisco County Democratic Cent.

Comm., 489 U.S. 214, 223 (1989). See generally Opinion of the

Justices, 387 Mass. 1201, 1202 (1982), quoting Colo v. Treasurer

& Receiver Gen., 378 Mass. 550, 558 (1979) ("criteria which have

been established by the United States Supreme Court for judging

claims arising under the First Amendment . . . are equally

appropriate to claims brought under cognate provisions of the

Massachusetts Constitution").

Yet, the fact that "speech is used as a tool for political

ends does not automatically bring it under the protective mantle

of the Constitution." Garrison v. Louisiana, 379 U.S. 64, 75

(1964). Statements made during the fervor of a political

campaign may fall within those "well-defined and narrowly

limited classes of speech, the prevention and punishment of

which have never been thought to raise any Constitutional
 11

problem."6 Chaplinsky v. New Hampshire, 315 U.S. 568, 571–572

(1942). See New York Times Co., 376 U.S. at 268-269. The

Commonwealth contends that the campaign speech proscribed by

§ 42 falls within two of these classes: fraud, see Virginia

State Bd. of Pharmacy v. Virginia Citizens Consumer Council,

Inc., 425 U.S. 748, 771 (1976), and defamation, see New York

Times Co., supra at 283; and is, thus, not entitled to

constitutional protection. We disagree. The fact "that these

areas of speech can, consistently with the First Amendment, be

regulated because of their constitutionally proscribable content

. . . [does] not [mean] that they are categories of speech

entirely invisible to the Constitution, so that they may be made

the vehicles for content discrimination unrelated to their

distinctively proscribable content" (emphasis omitted). R.A.V.

v. St. Paul, 505 U.S. 377, 383-384 (1992). In others words,

statutes that proscribe both protected and unprotected speech

are not categorically removed from constitutional scrutiny.

The Commonwealth's interest in preventing and punishing

election fraud remains relevant to the inquiry into the

6
Within these classes of unprotected speech, which include
obscenity, defamation, fraud, incitement, and speech integral to
criminal conduct, United States v. Stevens, 559 U.S. 460, 468-
470 (2010), "'the evil to be restricted so overwhelmingly
outweighs the expressive interests, if any, at stake, that no
process of case-by-case adjudication is required,' because 'the
balance of competing interests is clearly struck.'" Id. at 470,
quoting New York v. Ferber, 458 U.S. 747, 763-764 (1982).
 12

statute's constitutionality. See Schaumburg v. Citizens for a

Better Env't, 444 U.S. 620, 637 (1980). But any legitimate

interest in preventing electoral fraud must be done by narrowly

drawn laws designed to serve those interests without

unnecessarily interfering with First Amendment freedoms. Id.

The elements of fraud are "[1] a false representation of

material fact, [2] with knowledge of its falsity, [3] for the

purpose of inducing the plaintiffs to act on this

representation, [4] that the plaintiffs reasonably relied on the

representation as true, and [5] that they acted upon it to their

damage." Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc.,

455 Mass. 458, 471 (2009).7 Section 42 plainly does not require

a showing of reliance or damage. See Alvarez, 132 S. Ct. at

2554 (Breyer, J., concurring) ("Fraud statutes, for example,

typically require proof of a misrepresentation that is material,

upon which the victim relied, and which caused actual injury").

Contrast Illinois ex rel. Madigan v. Telemarketing Assocs.,

Inc., 538 U.S. 600, 620 (2003) (law targeting fraudulent

charitable solicitations fell within fraud exception where it

required "demonstrat[ion] that the defendant made the

representation with the intent to mislead the listener, and

succeeded in doing so"). Thus, the fact that § 42 may reach

7
See Commonwealth v. Leonard, 352 Mass. 636, 644-645 (1967)
(larceny by false pretenses has same elements).
 13

fraudulent speech is not dispositive, because it also reaches

speech that is not fraudulent.8 See United States v. Williams,

553 U.S. 285, 316 n.2 (2008) (Souter, J., dissenting) ("fact

that fraud is a separate category of speech which independently

lacks First Amendment protection changes the analysis with

regard to such proposals, although it does not necessarily

dictate the conclusion. The Court has placed limits on the

policing of fraud when it cuts too far into other protected

speech"). Consequently, § 42 does not fit within the

categorical exception for the regulation of fraudulent speech.

See generally R.A.V., 505 U.S. at 384.

The Commonwealth's attempt to shoehorn § 42 into the

exception for defamatory speech is similarly flawed. "To

prevail on a claim of defamation, a plaintiff must establish

that [1] the defendant was at fault for the publication of a

false statement regarding the plaintiff, [2] capable of damaging

8
The Commonwealth contends that fraudulent speech may
nonetheless be unprotected absent a showing of concrete harm
where the speech threatens "the integrity of Government
processes." United States v. Alvarez, 132 S. Ct. 2537, 2546
(2012). However, the Commonwealth has not established that the
range of speech proscribed by § 42 poses an actual and
substantial threat to the electoral process. See 281 Care Comm.
v. Arneson, 766 F.3d 774, 790 (8th Cir. 2014), cert. denied, 135
S. Ct. 1550 (2015) ("reliance upon 'common sense' to establish
that the use of false statements impacts voters' understanding,
influences votes and ultimately changes elections, is not enough
on these facts to establish a direct causal link between [the
statute] and an interest in preserving fair and honest
elections").
 14

the plaintiff's reputation in the community, [3] which either

caused economic loss or is actionable without proof of economic

loss." White v. Blue Cross & Blue Shield of Mass., Inc., 442

Mass. 64, 66 (2004). Additionally, a defamatory statement

against a candidate for public office is actionable only if is

made with "actual malice."9 Lane v. MPG Newspapers, 438 Mass.

476, 479 (2003). See New York Times Co., 376 U.S. at 283

(civil); Garrison, 379 U.S. at 74 (criminal). Although § 42 is

capable of reaching such defamatory statements, it is also

capable of reaching statements regarding ballot questions and

statements by a candidate about himself designed to enhance his

own candidacy, i.e., statements that clearly are not defamatory.

See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 352 n.16

(1995), quoting People v. White, 116 Ill. 2d 171, 180 (1987) ("A

public question clearly cannot be the victim of character

assassination"). As a result, § 42 does not fit within the

categorical exception for the regulation of defamatory speech.

See generally R.A.V., 505 U.S. at 384.

Finding no historical exception into which § 42 may

comfortably fit, we next consider whether the statute imposes a

restraint on the content of protected speech. "A statute is

9
Actual malice means either knowledge that the statement
made was false or reckless disregard for whether it was false or
not. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
 15

content neutral only if 'it is justified without reference to

the content of the regulated speech.'" Opinion of the Justices,

436 Mass. 1201, 1206 (2002), quoting Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). Section 42 proscribes false

statements whose content is designed to affect candidates and

ballot issues. Because the "applicability of the [statute's]

requirements can only be determined by reviewing the contents of

the proposed expression, the [statute] is a content-based

regulation of speech." Opinion of the Justices, 436 Mass. at

1206. Accordingly, § 42 is presumptively invalid and the

Commonwealth bears the heavy burden of establishing its

constitutionality. See Mendoza, 444 Mass. at 197 n.12.

ii. Level of scrutiny. The parties dispute the level of

constitutional scrutiny that we should apply to § 42. Lucas

argues that strict scrutiny is appropriate because the statute

regulates the content of protected speech. See, e.g., United

States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814

(2000) ("As we consider a content-based regulation, the answer

should be clear: The standard is strict scrutiny"). The

Commonwealth advocates for an intermediate level of scrutiny;

that is, whether the statute "advances important governmental

interests unrelated to the suppression of free speech and does

not burden substantially more speech than necessary to further

those interests." Turner Broadcasting Sys., Inc. v. Federal
 16

Communications Comm'n, 520 U.S. 180, 189 (1997). The United

States Supreme Court has applied intermediate scrutiny in a

variety of contexts, including content-neutral regulations,

United States v. O'Brien, 391 U.S. 367, 376-377 (1968);

prohibitions on commercial speech, Thompson v. Western States

Med. Ctr., 535 U.S. 357, 367 (2002); and "reasonable,

nondiscriminatory restrictions" on voting, Burdick v. Takushi,

504 U.S. 428, 434 (1992), quoting Anderson v. Celebrezze, 460

U.S. 780, 788 (1983). The Commonwealth's position is that

intermediate scrutiny is required here as well, in light of

Justice Breyer's concurring opinion in Alvarez, 132 S. Ct. at

2551-2552, which it casts as the narrowest and therefore

controlling opinion in that case. See Marks v. United States,

430 U.S. 188, 193 (1977), quoting Gregg v. Georgia, 428 U.S.

153, 169 n.15 (1976) ("When a fragmented Court decides a case

and no single rationale explaining the result enjoys the assent

of five Justices, 'the holding of the Court may be viewed as

that position taken by those Members who concurred in the

judgments on the narrowest grounds . . .'").

In Alvarez, six justices of the Supreme Court agreed that

the Stolen Valor Act, which made it a crime to claim falsely

receipt of the Congressional Medal of Honor, violated the First

Amendment. Alvarez, supra at 2543, 2551. The justices did not

agree, however, as to the appropriate level of constitutional
 17

scrutiny. A plurality of four justices concluded that because

the statute regulated the content of protected speech, it was

subject to the "most exacting scrutiny." Id. at 2548, quoting

Turner Broadcasting Sys., Inc. v. Federal Communications Comm'n,

512 U.S. 622, 642 (1994). In contrast, the two concurring

justices concluded that the more flexible intermediate level of

scrutiny was appropriate because the statute did not encroach on

a subject matter that traditionally has called for strict

scrutiny. Id. at 2552. In light of this reasoning, we find it

doubtful that the concurring opinion of two justices in Alvarez

abrogated the well-established line of First Amendment precedent

holding that content-based restrictions of political speech must

withstand strict scrutiny. Accord 281 Care Comm., 766 F.3d at

782 (concluding that Alvarez did not alter level of scrutiny

applied to regulation of political speech). See, e.g., Arizona

Free Enter. Club's Freedom Club PAC, 131 S. Ct. at 2817, quoting

Citizens United, 558 U.S. at 340 ("'Laws that burden political

speech are' accordingly 'subject to strict scrutiny'"); Boos v.

Barry, 485 U.S. 312, 321 (1988) ("a content-based restriction on

political speech in a public forum . . . must be subjected to

the most exacting scrutiny" [emphasis omitted]).10

10
Following oral argument in the present case, the United
States Supreme Court issued its decision in Reed v. Gilbert, 135
S. Ct. 2218 (2015). That case involved a signage regulation
that treated categories of signs differently depending on their
 18

In any event, we need not enter that fray because, under

our Declaration of Rights, the applicable standard for content-

based restrictions on political speech is clearly strict

scrutiny. See Bachrach v. Secretary of the Commonwealth, 382

Mass. 268, 276 (1981) ("As a substantial restriction of

political expression and association . . . the legislation at

bar should attract 'strict scrutiny'"). See also First Nat'l

Bank v. Attorney Gen., 362 Mass. 570, 587 (1972) ("Legislature

has the power to regulate elections in order to prevent bribery,

fraud and corruption to the end that the people's right to vote

may be protected. . . . But such regulation must be narrowly

drawn to meet the precise evil sought to be curbed"). See

generally Roman v. Trustees of Tufts College, 461 Mass. 707, 713

(2012), quoting Batchelder v. Allied Stores Int'l, Inc., 388

content. Id. at 2224-2225. The Court observed that the
regulation was "content based on its face. . . . It defines
'Political Signs' on the basis of whether a sign's message is
'designed to influence the outcome of an election.'" Id. at
2227. The Court held unanimously that the regulation violated
the First Amendment. See id. at 2232. See also id. at 2236
(Kagan, J., concurring in the judgment). Although three of the
concurring justices questioned the application of strict
scrutiny, six justices agreed that strict scrutiny was the
proper standard. See id. at 2236, 2239 (Kagan, J., concurring
in the judgment). See also id. at 2231 ("obvious content-based
inquiry does not evade strict scrutiny review simply because an
event [i.e., an election] is involved"). The Reed case casts
additional doubt on the Commonwealth's position in the present
case that the Supreme Court would apply intermediate scrutiny to
the content-based restriction of political speech imposed by
§ 42.
 19

Mass. 83, 89 n. 8 (1983), S.C., 393 Mass. 819 (1985) ("we have

rejected the assertion that art. 16 can 'extend no further than

the comparable provisions of the First Amendment'"). "We adhere

to the principle that this court will exercise its independent

judgment to uphold the cherished protections of the Declaration

of Rights as a matter of State constitutional law." Mendoza,

444 Mass. at 201. Accordingly, we now turn to whether § 42 can

withstand strict scrutiny under art. 16.

iii. Scrutiny under art. 16. In order for § 42 to

withstand strict scrutiny, the government must establish that

the statute is both "necessary to serve a compelling state

interest and . . . narrowly drawn to achieve that end." Opinion

of the Justices, 436 Mass. at 1206, quoting Simon & Schuster,

Inc. v. New York Crime Victims Bd., 502 U.S. 105, 118 (1991).11

The Commonwealth argues that it has a compelling interest in the

maintenance of free and fair elections. As a general matter, we

agree. See art. 9 of the Massachusetts Declaration of Rights

("All elections ought to be free"); Opinion of the Justices, 385

Mass. 1201, 1206 (1982) ("Commonwealth unquestionably has a

compelling interest in the over-all regularity of the election

process"); Anderson v. Boston, 376 Mass. 178, 193, appeal

11
Although we decide this case under art. 16, we draw on
First Amendment jurisprudence insofar as it is instructive of
the application of the strict scrutiny standard.
 20

dismissed, 439 U.S. 951 (1978) ("Commonwealth has a substantial,

compelling interest in assuring the fairness of elections and

the appearance of fairness in the electoral process"). See also

Eu, 489 U.S. at 231 ("A State indisputably has a compelling

interest in preserving the integrity of its election process").

We also agree that this interest includes efforts by the

government to thwart political corruption, voter intimidation,

and election fraud. See Cepulonis v. Secretary of the

Commonwealth, 389 Mass. 930, 935-936 (1983). See also Burson v.

Freeman, 504 U.S. 191, 208 (1992) (opinion of Blackmun, J.).

However, the Commonwealth "does not have carte blanche to

regulate the dissemination of false statements during political

campaigns," 281 Care Comm., 766 F.3d at 787, and its "claim that

it is enhancing the ability of its citizenry to make wise

decisions by restricting the flow of information to them must be

viewed with some skepticism." Id., quoting Eu, supra at 228.

In this case, such skepticism is well founded, as the

Commonwealth has not established that § 42 actually is necessary

to serve the compelling interest of fair and free elections.

Suppose, for example, that a candidate makes the following false

statement at a preelection debate: "I received the

Congressional Medal of Honor." This constitutes (1) a false

statement, (2) made about a candidate, (3) designed to aid that

candidate win an election, and therefore a crime pursuant to
 21

§ 42. Such a result raises serious doubts about the

constitutionality of § 42 in light of Alvarez, 132 S. Ct. at

2551 (striking down on First Amendment grounds Federal statute

criminalizing false Medal of Honor claims). Alvarez teaches

that the criminalization of such falsehoods is unnecessary

because a remedy already exists: "the simple truth." Id. at

2550.

Courts in other jurisdictions have applied this same

principle to conclude that statutes broadly suppressing false

statements about candidates or ballot questions cannot withstand

strict scrutiny for the simple reason that "[o]ur constitutional

election system already contains the solution to the problem

that [such statutes are] meant to address." Rickert v. Public

Disclosure Comm'n, 161 Wash. 2d 843, 855 (2007) (en banc). That

solution is counterspeech. See id. (" In a political campaign, a

candidate's factual blunder is unlikely to escape the notice of,

and correction by, the erring candidate's political opponent"

[quotations and citations omitted]); 281 Care Comm., 766 F.3d at

793 ("Especially as to political speech, counterspeech is the

tried and true buffer and elixir"). Governmental efforts to

supplant political counterspeech with the specter of

incarceration date back to the earliest years of our

constitutional democracy. The Sedition Act of 1798, c. 74, 1

Stat. 596, enacted by Congress just seven years after the
 22

ratification of the First Amendment, made it a crime to

"knowingly and willingly assist or aid in writing, printing,

uttering or publishing any false, scandalous and malicious

writing or writings against the government of the United States

. . . with intent to defame the said government . . . or to

bring [it] . . . into contempt or disrepute." Id. at § 2. In

1799, the Legislature issued a declaration of support for the

Sedition Act. Jenkins, The Sedition Act of 1798 and the

Incorporation of Seditious Libel into First Amendment

Jurisprudence, 45 Am. J. Legal Hist. 154, 172 (2001). In the

election of 1800, however, the unconstitutionality of the

Sedition Act was a prominent theme in Thomas Jefferson's

successful campaign for the presidency. See Amar, The Bill of

Rights as a Constitution, 100 Yale L.J. 1131, 1149-1150 (1991).

As the Supreme Court has observed, history has proven Jefferson

right. See New York Times Co., 376 U.S. at 274-276. The fabric

of jurisprudence woven across the years following the passage of

the Sedition Act and, indeed, § 42 has illustrated vividly that

the importance of preserving "the freedom to think for

ourselves," Citizens United, 558 U.S. at 356, must be elevated

over even those well-intentioned laws that have the effect of

"censoring pure speech or speakers in order to 'improve the

quality' or 'increase the fairness' of public debate."

Bachrach, 382 Mass. at 281, quoting Cox, The Supreme Court 1979
 23

Term Forward: Freedom of Expression in the Burger Court, 94

Harv. L. Rev. 1, 67 (1980).

The Commonwealth attempts to distinguish these principles

with the rather remarkable argument that the election context

gives the government broader authority to restrict speech. The

opposite is true. See, e.g., Weld for Governor v. Director of

the Office of Campaign & Political Fin., 407 Mass. 761, 769

(1990), quoting Buckley v. Valeo, 424 U.S. 1, 15 (1976) ("First

Amendment rights of speech and association have their 'fullest

and most urgent application precisely to the conduct of

campaigns for political office'"); Anderson, 376 Mass. at 191

n.14 ("open discussion of political candidates and elections is

basic First Amendment material. Government domination of the

expression of ideas is repugnant to our system of constitutional

government"). See also Meyer v. Grant, 486 U.S. 414, 425 (1988)

("the speech at issue is 'at the core of our electoral process

and of the First Amendment freedoms,' . . . an area of public

policy where protection of robust discussion is at its zenith"

[citation omitted]). Thus, in Commonwealth v. Dennis, 368 Mass.

92, 92 (1975), we struck down a similar statute, G. L. c. 56,

§ 41, which made it a crime to distribute anonymous pamphlets

"designed to aid or to defeat any candidate for nomination or

election to any public office or any question submitted to the

voters." We observed that there was "significant authority that
 24

a disclosure requirement relating to election pamphlets cannot

survive a First Amendment challenge," Dennis, supra at 98,

notwithstanding the government's constitutional interest in

ensuring fair and free elections. See art. 9.

Equally remarkable is the Commonwealth's reliance on the

Citizens United case to defend greater restrictions on election

speech. In that case, the Supreme Court departed from precedent

to strike down on First Amendment grounds a Federal statute

restricting the ability of corporations to make political

expenditures from general treasury funds. Citizens United, 558

U.S. at 318-319, 372. The Commonwealth contends that, as a

result of this decision, heavily funded groups are now able to

skew political discourse so as to render counterspeech an

ineffective remedy for falsehood.12 Regardless of the essential

impact of Citizens United on the democratic process, that

decision does not provide any support for reducing the

constitutional protection afforded core political speech.

12
We note that the use of calculated falsehoods and
vitriolic rhetoric to sway elections long predates the Supreme
Court's decision in Citizens United v. Federal Election Comm'n,
558 U.S. 310 (2010). The election of 1800, discussed supra, is
particularly notable in this regard, with supporters of Thomas
Jefferson referring to John Adams as a "hideous hermaphroditical
character which has neither the force or firmness of a man, nor
the gentleness and sensibility of a woman," and supporters of
Adams referring to Jefferson as "the son of a half-breed Indian
squaw, sired by a Virginia mulatto father." Shugerman, The
Golden or Bronze Age of Judicial Selection?, 100 Iowa L. Rev.
Bull. 69, 74 (2015).
 25

Latching on to language from McIntyre, 514 U.S. at 349, that

"[t]he state interest in preventing fraud and libel . . .

carries special weight during election campaigns," the

Commonwealth points out that § 42 reaches falsehoods far more

insidious and difficult to discredit on the eve of an election

than, for example, the lie uttered in Alvarez. Accordingly, the

argument goes, § 42 is necessary because, in contrast to

Alvarez, the shortened time frame of an election may render the

truth an ineffective remedy. This point is well taken, but

nonetheless fails because, like the statute at issue in

McIntyre, § 42 is not narrowly tailored. McIntyre, supra at 357

(striking down on First Amendment grounds State statute

prohibiting anonymous political leafletting).

Section 42 applies not only to elections of public

officers, but also to ballot issues. See McIntyre, supra at

351-352. It may be invoked as soon as one announces his or her

candidacy -- not merely on the eve of the election. Cf. id. at

352 ("It applies not only to leaflets distributed on the eve of

an election, when the opportunity for reply is limited, but also

to those distributed months in advance"). It reaches not only

those statements that are widely disseminated through commercial

advertisement, but also those exchanged between two friends

engaged in a spirited political discussion in a local pub. Cf.

id. at 351 ("It applies not only to the activities of candidates
 26

and their organized supporters, but also to individuals acting

independently and using only their own modest resources");

Alvarez, supra at 2555 (Breyer, J., concurring) ("the

prohibition may be applied where it should not be applied, for

example, to bar stool braggadocio or, in the political arena,

subtly but selectively to speakers that the Government does not

like"). Moreover, as reflected in the Medal of Honor

hypothetical, it applies to a broad range of content that does

not pose a realistic threat to the maintenance of fair and free

elections. Cf. McIntyre, supra at 351 ("Although these

ancillary benefits are assuredly legitimate, we are not

persuaded that they justify [the statute's] extremely broad

prohibition"). Thus, the more apt observation from McIntyre is

this: "The State may, and does, punish fraud directly. But it

cannot seek to punish fraud indirectly by indiscriminately

outlawing a category of speech, based on its content, with no

necessary relationship to the danger sought to be prevented."

Id. at 357. See State ex rel. Public Disclosure Comm'n v. 119

Vote No! Comm., 135 Wash. 2d 618, 630 (1998) (en banc) ("the

State asserts McIntyre impliedly suggested laws prohibiting

false political statements are constitutional. However the

inference to be drawn from McIntyre is just the opposite").

As the facts of this case demonstrate, the danger of such

breadth is that the statute may be manipulated easily into a
 27

tool for subverting its own justification, i.e., the fairness

and freedom of the electoral process, through the chilling of

core political speech. See First Nat'l Bank v. Attorney Gen.,

362 Mass. 570, 587-588 (1972), quoting United States v. Congress

of Indus. Orgs., 335 U.S. 106, 155 (1948) (Rutledge, J.,

concurring) ("A statute which, in the claimed interest of free

and honest elections, curtails the very freedoms that make

possible exercise of the franchise by an informed and thinking

electorate, and does this by . . . serving as a prior restraint

upon expression not in fact forbidden as well as upon what is,

cannot be squared with the First Amendment"). See also Alvarez,

132 S. Ct. at 2550 ("suppression of speech by the government can

make exposure of falsity more difficult, not less so"); 281 Care

Comm., 766 F.3d at 796 ("statute itself actually opens a

Pandora's box to disingenuous politicking"); 119 Vote No! Comm.,

135 Wash. 2d at 626, 627, quoting McIntyre, 514 U.S. at 352 n.16

("a well-publicized, yet bogus, complaint to the [commission] on

election eve raises the same concern [as 'an eleventh-hour

anonymous smear campaign']").

The Commonwealth suggests that we could curb this danger by

narrowly construing § 42 to regulate only fraudulent and

defamatory speech. Although the statute could be narrowly

construed in some respects, it is not amenable to the

construction proposed by the Commonwealth, see Blixt v. Blixt,
 28

437 Mass. 649, 674 (2002), quoting School Comm. of Greenfield v.

Greenfield Educ. Ass'n, 385 Mass. 70, 79 (1982) ("It is our duty

to construe statutes so as to avoid such constitutional

difficulties, if reasonable principles of interpretation permit

it");13 and even if we were to read the statute narrowly to

encompass only knowingly false statements of fact, the

distinction between fact and opinion is not always obvious and,

evidently, was not obvious to the clerk-magistrate who issued

the criminal complaint in this case. See King v. Globe

Newspaper Co., 400 Mass. 705, 709 (1987) ("it is much easier to

recognize the significance of the distinction between statements

of opinion and statements of fact than it is to make the

13
For example, although the language of the statute does
not expressly limit its reach to false statements of fact, we
could imply such a limitation from the principle that an opinion
cannot be proven false. See Rotkiewicz v. Sadowsky, 431 Mass.
748, 756 (2000) ("subjective statements of opinion . . . were
not susceptible of being proven false"). Similarly, although
the statute does not expressly require that the publisher of the
statement know of its falsity, we could imply such a limitation
from the principle that statutes criminalizing speech should be
construed to include a scienter requirement. See Commonwealth
v. Jones, 471 Mass. 138, 143 (2015). What we will not do,
however, is interpret the statute in a way that is plainly
contrary to its language. See Blixt v. Blixt, 437 Mass. 649,
674 (2002), cert. denied, 537 U.S. 1189 (2013), quoting Mile Rd.
Corp. v. Boston, 345 Mass. 379, 383, appeal dismissed, 373 U.S.
541 (1963) ("A statute, of course, must be construed, if
possible, to avoid serious constitutional doubts. This
principle, however, does not authorize the judiciary to supply
qualifying words not fairly to be imported from the actual
language of the statute"). As explained above, the plain
language of § 42 criminalizes an array of false statements that
extend well beyond fraud and defamation.
 29

distinction in a particular case"). "[S]uch a determination

itself may be viewed [by the electorate] as a sanction by the

State" [quotation and citation omitted]. Susan B. Anthony List,

134 S. Ct. at 2346.

Moreover, even in cases involving seemingly obvious

statements of political fact, distinguishing between truth and

falsity may prove exceedingly difficult. Assertions regarding a

candidate's voting record on a particular issue may very well

require an in-depth analysis of legislative history that will

often be ill-suited to the compressed time frame of an election.

Thus, in the election context, as elsewhere, it is apparent

"that the ultimate good desired is better reached by free trade

in ideas -- that the best test of truth is the power of the

thought to get itself accepted in the competition of the market,

and that truth is the only ground upon which [the people's]

wishes safely can be carried out. That at any rate is the

theory of our Constitution." Lyons v. Globe Newspaper Co., 415

Mass. 258, 268 (1993), quoting Abrams v. United States, 250 U.S.

616, 630 (1919) (Holmes, J., dissenting). See 281 Care Comm.,

766 F.3d at 796 ("citizenry, not the government, should be the

monitor of falseness in the political arena").

The foregoing problems make it all the more concerning that

anyone may file an application for a criminal complaint under

§ 42. See 281 Care Comm., 766 F.3d at 790. The risk inherent
 30

in such an environment is that an individual, unconstrained by

the ethical obligations imposed on government officials, will

file an unmeritorious application "at a tactically calculated

time so as to divert the attention of an entire campaign from

the meritorious task at hand of supporting or defeating a ballot

question [or candidate]." Id. See Susan B. Anthony List, 134

S. Ct. at 2345 ("Because the universe of potential complainants

is not restricted to state officials who are constrained by

explicit guidelines or ethical obligations, there is a real risk

of complaints from, for example, political opponents"). See

generally Mass. R. Prof. C. 3.8 comment 1, 426 Mass. 1397 (1998)

("prosecutor has the responsibility of a minister of justice").

As was the case here, by the time of the probable cause hearing

the election may well be over and the damage will be done. See

281 Care Comm., 766 F.3d at 792. Thus, even under a narrow

construction, there is a genuine risk that the operation of § 42

will cast an unacceptable chill on core political speech. The

statute cannot withstand strict scrutiny.14

3. Conclusion. We conclude that § 42 cannot be limited

to the criminalization of fraudulent or defamatory speech, is

neither necessary nor narrowly tailored to advancing the

14
To the extent that a contrary conclusion could be drawn
from our passing reference to § 42 in Opinion of the Justices,
363 Mass. 909, 916 (1973), that conclusion is overruled.
 31

Commonwealth's interest in fair and free elections, and chills

the very exchange of ideas that gives meaning to our electoral

system. For all of these reasons, we hold that § 42 is

antagonistic to the fundamental right of free speech enshrined

in art. 16 of our Declaration of Rights and, therefore, is

invalid. Accordingly, the criminal complaint charging Lucas

with violating § 42 must be dismissed.

So ordered.