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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.