Angiulo: Freedom of Speech and Political Campaigns

Monday, August 10, 2015

Leonardo Angiulo, GoLocalWorcester Legal Contributor

The spector of the upcoming presidental election has cast a long shadow over our social media. The Worcester mayoral race is cooking along pretty good now, too. Most people who have witnessed a few election cycles know what comes next: debates, sound bites, and the grinding of gears by political machines of various flavors. Given the imminence of heavy campaigning, the Supreme Judicial Court's recent decision of Commonwealth v. Lucas is remarkably well timed.

While you may not know the name, the facts of this case were fairly well publicized during the Fall of 2014. During those heady months, a political action committee (“PAC”) sent out a brochure demonizing a candidate for State Representative in Barnstable County. The candidate responded by filing a criminal complaint against the chairwoman of that PAC claiming she violated section 42 of chapter 56 of the Massachusetts General Laws. That statute makes it a crime to publish false statements that are designed to sway a vote for a candidate or issue.

Some people out there may be thinking, what can possibly be wrong with a law like that? That logic is probably how the statute made it onto the books in the first place. In one of the most eloquently drafted opinions seen yet, the justices of the SJC explain exactly why it violates constitutional principles of free speech.

In its warm up, the court dealt with the practicalities of the statute. As seen in the facts of this case, a candidate and PAC were dueling and the filing of a criminal complaint essentially froze one half of a political conversation in the weeks leading up to an election. The court went on to explain that this criminal complaint was able to be filed only because the law cited restricted speech based purely on its content. Article 16 of the Massachusetts Declaration of Rights is similar to the Federal first amendment and deals with the freedom of speech in the Commonwealth. In applying article 16, the SJC applies strict scrutiny to all content based restriction on political speech.

In order to pass this test, a law must serve a compelling state interest and also be narrowly drawn to achieve that end. The Commonwealth's argument was that its interest in maintaining free and fair elections justified the law. The court's response was devastatingly clear: a claim that citizens make better electoral decisions when the flow of information is restricted will not be accepted.

Some people may look at the Lucas decision and wonder why the SJC would make a decision that functionally permits lying in political campaigns. As if anticipating such a reaction, the court included a love letter of sorts to the American electorate.

They looked back to the presidential race of 1800 between our own John Adams and Thomas Jefferson and then reviewed Federal and State cases since then to form their opinion. What they found was that preserving the right to think for ourselves is the most important principle when it comes to laws that restrict political speech. The court chose to trust the people of this country to not only catch false statements during political activities, but to also weigh the statement in whatever way appropriate.

For example, if a person slips up during a debate the public can decide whether the mistake was an intentional lie or a mistake. If a pamphlet misstates an opposing candidate's voting record, many people might hold it against the publisher for running a nasty and misleading campaign. As the court stated in its conclusion, it is the free exchange of ideas that makes our electoral system meaningful. By putting faith in the electorate, our court has paid us a great compliment and strengthened our democracy. It has, however, also placed a responsibility on our shoulders to remain vigilent.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

Related Slideshow: The 2016 President Candidates Ranked by Absurdity

InsideGov ranked the levels of absurdity for each candidate by these four criteria:

A consistently low 2015 polling average: consistently low poll numbers make campaigns more superfluous, and thus, more absurd
Extreme ideologies: candidates with extreme views—whether way to the left or way to the right—tend to be less viable, and thus, more ridiculous
Little-to-no years of elected office or active-duty military experience: inexperienced and unproven, these candidates are more prone to absurdity
Multiple attempts at the presidency: the more attempts, the less serious the candidate becomes

Angiulo: Freedom of Speech and Political Campaigns

Related Slideshow: The 2016 President Candidates Ranked by Absurdity

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