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Angiulo: Freedom of Speech and Political Campaigns

Monday, August 10, 2015

 

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

Prev Next

#21

Candidate: Scott Walker 

Absurdity Index: 37.1 (very low)

What InsideGov said

He might be the most boring candidate in the race, but he’s also the least ridiculous. The Governor of Wisconsin has 22 years of elected experience and consistently solid polling numbers for 2016.

While he leans more conservative than average, he takes few truly extreme positions. He’s the most reasonable candidate in the entire field, by InsideGov’s metrics.

Prev Next

#20

Candidate: Martin O'Malley

Absurdity Index: 39.4

What InsideGov said

By InsideGov’s calculations, the former Governor of Maryland is the most moderate Democrat in the field, and among the five most moderate candidates overall.

Even if he never gains traction against the mighty Clinton machine, we can expect O’Malley to add a measured, level-headed perspective to the Democratic primaries.

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#19

Candidate: Chris Christie

Absurdity Index: 39.7

What InsideGov said

While the Governor of New Jersey gets a bad rap for his bluster and blunt statements, the data suggests he’s one of the more reasonable candidates, on the whole. He’s moderate across almost every issue, and he's still alive in the polls.

“Bridgegate” might ultimately doom him, but his decision not to run for president in 2012 was classic, sensible Christie.

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#18

Candidate: Hillary Clinton

Absurdity Index: 40.6

What InsideGov said

Clinton scores a few absurdity points across several categories: she’s only served eight years of elected office*, has run for president before, and is more liberal than all but one competitor. Still, her historically dominant position in the polls (nearly 50 points above her nearest challenger) means we have to take the former New York Senator seriously. In the position she’s in, it would be ridiculous for hernot to run.

*For our purposes, her terms as First Lady and Secretary of State do not count toward her total, because she was not elected to those positions.

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#17

Candidate: Jeb Bush

Absurdity Index: 40.8

What InsideGov said

Some might say that three Bushes in three decades is absurd, but by our numbers, Jeb Bush is among the most sensible of the candidates. He consistently polls at the top of the GOP field, holds more moderate positions than most of his opponents and seems to have waited for the perfect time to run.

Prev Next

#16

Candidate: Lincoln Chafee

Absurdity Index: 43.0

What InsideGov said

The recent Democratic Party-convert holds moderate views and boasts 24 years of elected experience—enough to make him a logical candidate for the 2016 race. Only his extremely low polling numbers, which suggest that his candidacy will be irrelevant, bump him a few spots up this list.

Prev Next

#15

Candidate: Bernie Sanders

Absurdity Index: 43.5

What InsideGov said

The most liberal candidate in the field, Bernie Sanders will likely add a far-left voice to the Democratic primaries. That said, his decent polling numbers and 34 years of elected experience suggest he deserves to be in the conversation, regardless of his ideology.

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#14

Candidate: Marco Rubio

Absurdity Index: 45.2

What InsideGov said: 

The Tea Party star turned respected Florida Senator boasts 15 years of experience and a solid polling average. Rubio’s sole weakness might be his strong conservative streak, which will make him less palatable in the general election. Only Rick Santorum and Ted Cruz hold viewpoints further to the right.

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#13

Candidate: Lindsey Graham

Absurdity Index: 45.8

What InsideGov said

The South Carolina Senator has all the experience you’d ever want in a president: 22 years of elected service, another dozen of active-duty military service. Still, Graham’s abysmal polling numbers suggest he has no business in an already crowded field.

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#12

Candidate: Jim Webb

Absurdity Index: 45.8

What InsideGov said

Similar to Graham, Jim Webb brings a combination of government and military service to the table, an attractive résumé that would seem to appeal to liberal and conservative voters alike. And while he doesn’t have quite as much total experience as Graham, Webb’s moderate ideology scores would make him a compelling general election contender. That said, Webb is so far behind Clinton in the polls that his candidacy likely won't last.

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#11

Candidate: Rick Perry

Absurdity Index: 47.0

What InsideGov said

Though he leans more conservative than the average GOP candidate, Rick Perry’s 35 years of elected experience—including 15 as the Governor of Texas—make Perry an immediate contender. He’ll just need to escape the shadow of his failed 2012 run, where debate gaffes unraveled an otherwise promising campaign.

Prev Next

#10

Candidate: John Kasich

Absurdity Index: 47.3

What InsideGov said

The Governor of Ohio has over two decades of experience and a balanced mix of viewpoints that could appeal to national voters. For now, only a low polling average brings Kasich down. Given that the governor hasn’t officially announced his candidacy, Kasich could quickly find himself moving down the Absurdity Index and into a short list of contenders.

Prev Next

#9

Candidate: Rand Paul 

Absurdity Index: 48.8

What InsideGov said

While he’s relatively new to the game (particularly compared to his father, Ron Paul), Paul’s Libertarian leanings will likely help the Kentucky Senator win over a small subset of American voters. His bigger problem will be garnering support from traditional Democrats or Republicans—each of which will have fundamental disagreements with his platform.

Prev Next

#8

Candidate: George Pataki

Absurdity Index: 49.8

What InsideGov said

The former Governor of New York is, by InsideGov’s count, the last of the semi-viable 2016 candidates. His polling is currently in the gutter, but his moderate views, 25 years of experience and record as a GOP governor in a liberal state all contribute to a well-rounded presidential candidate. He just needs voters to pay attention.

Prev Next

#7

Candidate: Mike Huckabee

Absurdity Index: 52.2

What InsideGov said

Part pastor, part politician and part Fox News personality, Mike Huckabee has done a little bit of everything—past positions that will help him appeal to a loyal base of Evangelical voters.

For mainstream voters, however, Huckabee’s revolving door of professions, overemphasis on religious values and lack of foreign policy bonafides make him unfit for office.

Prev Next

#6

Candidate: Ben Carson

Absurdity Index: 55.4

What InsideGov said

Famous for being the first surgeon to successfully separate twins conjoined at the head, Ben Carson is a brilliant physician, but has never been a politician. While some might be refreshed by a candidate so removed from Washington, history tells us that these candidates are the most likely to be loose canons, with offhand comments that trained politicians are smart enough to avoid. For these reasons, Carson is likely to wind up more sideshow than serious contender.

Prev Next

#5

Candidate: Ted Cruz

Absurdity Index: 59.9

What InsideGov said

New to politics and more conservative than the entire field, Cruz easily ranks among 2016’s most absurd candidates. He’ll likely provide some entertainment at debates and in interviews, but there’s no way he’ll make it past New Hampshire. Only a consistent bloc of Tea Party support in the polls prevents him from finishing in the top four.

Prev Next

#4

Candidate: Bobby Jindal

Absurdity Index: 66.5

What InsideGov said

Both highly conservative and unappealing to voters, the Governor of Louisiana has seen a sharp decline in support since he bombed a 2009 State of the Union response. The data says that neither voters nor television networks will take his bid very seriously; he may be among the first to drop out.

Prev Next

#3

Candidate: Rick Santorum

Absurdity Index: 67.2

What InsideGov said

While Santorum’s years of elected experience are about average (16), his deeply conservative views and consistently low poll numbers make him a superfluous addition to the race.

The former Pennsylvania Senator might be hoping that his deep 2012 run will help validate his bonafides as a candidate, but GOP voters already seem weary of the candidate. If anything, his presidential election history will be more of a curse than a blessing.

Prev Next

#2

Candidate: Carly Fiorina

Absurdity Index: 75.4

What InsideGov said

Fiorina’s low polling numbers and zero years of elected experience work against the businesswoman, who has been trying to transition to politics for the last decade. She deserves praise for her quick rise to senior vice president at AT&T, but her tenure at HP is more ominous.

While serving as HP’s CEO, the company underperformed in the stock market, took on billions in debt, laid off 30,000 workers and saw employee satisfaction plummet. The company’s board eventually forced her to resign. Add to that a failed Senate bid in 2010, and Fiorina has gone many years without a signature victory. It’s unlikely that the 2016 election will mean anything different for the aspiring politician.

Prev Next

#1

Candidate: Donald Trump 

Absurdity Index: 191.2

What InsideGov said

When it comes to absurdity, Trump breaks the scale. Yes, his recent poll numbers aren’t terrible, but all candidates receive bumps after officially announcing their campaigns. Instead, it’s Trump’s wacky policy positions, decades of pretend presidential runs and zero years of elected experience that earn Trump the honor of 2016’s most absurd candidate.

Trump is more likely than anyone on this list to make headlines, yet less likely than the entire field to actually become president. He’s more than twice as ridiculous as the next-most absurd candidate. When the 2016 race is all over, don’t say Trump didn’t win anything. Congratulations, Donald.

 
 

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