I have posted this draft on SSRN (forthcoming in Montana Law Review election law symposium). Here is the abstract:
For many years, courts have divided on the constitutionality of laws regulating false campaign speech, with some courts upholding some false campaign speech laws and other courts striking them down. This past June, however, the Supreme Court issued an opinion in U.S. v. Alvarez, a case which no doubt will cause courts to reconsider the constitutionality of such laws. Although Alvarez did not involve campaign speech, the Supreme Court discussed the general question whether the Constitution protects knowing lies in the context of a federal law barring false statements about military honors. The Court issued no majority opinion, but all of the opinions had something to say about laws regulating false speech generally, and Justice Breyer’s opinion (for himself and Justice Kagan) cast serious doubt on the constitutionality of many laws regulating false campaign (and possibly false election) speech. The upshot of Alvarez is that laws regulating false campaign speech are in even more constitutional trouble than they were before, and that any attempts to regulate such speech will have to be narrow, targeted, and careful in its choice of remedies.
Part I of this article briefly describes the pre-Alvarez split in the lower courts on the regulation of false campaign and election speech, and the arguments which had been advanced for and against the constitutionality of regulating false campaign speech. Part II describes the Supreme Court’s fractured opinion in U.S. v. Alvarez. Part III discusses how Alvarez may affect the constitutional calculus in the false campaign speech arena and argues that, in light of Alvarez courts should hold unconstitutional most broad state laws barring false speech in campaigns. But courts should reject challenges to narrower laws which, under an actual malice/clear and convincing evidence standard, (1) bar false (though not misleading) election speech about the mechanics of voting, such as false statements about the date and time of voting; (2) give a government election authority the power to reject false campaign speech submitted for official ballot materials; and (3) allow a jury to punish defamatory speech about candidates made with actual malice. Each of these proposed laws is consistent with the plurality’s and Justice Breyer’s opinions in Alvarez, although the defamation issue is somewhat in question.
The hardest case is whether the government has authority to enjoin or punish non-defamatory false campaign speech made with knowledge of falsity (actual malice) which has the potential to trick or defraud voters into changing their votes. Consider, for example, the false statement of a judicial candidate on a campaign poster that she is an incumbent judge, or a statement that the president has endorsed her for office. While the case is close, I argue that following Alvarez, courts are likely to conclude that the risks of allowing the government to punish or enjoin false campaign speech process outweigh the benefits of providing voters with truthful information. Further, the narrower solution to the problem of this type of false campaign speech is counterspeech from opposing candidates and the media, as well as the use of a government “truth commission” with the power to declare, before the election but subject to judicial review, that campaign speech is false.