Eighth Circuit Holds That Even Lies Are Constitutionally Protected, Unless They’re Fraudulent or Defamatory, or Unless the Restriction is “Narrowly Tailored to a Compelling State Interest”

The case is yesterday’s 281 Care Committee v. Arneson, which holds that a ban on recklessly or knowingly false statements about ballot initiatives is unconstitutional unless it can be shown to be “narrowly tailored to a compelling state interest” (what’s called the “strict scrutiny” test). The court remands to the district court, where presumably the district judge will decide whether the ban can indeed be defended under this test. The test, however, is almost always fatal — there is only one unreversed Supreme Court majority opinion upholding a content-based speech restriction under strict scrutiny (Holder v. Humanitarian Law Project) — so unless courts water down this test for false statements of fact, the law will likely be struck down.

The Eighth Circuit agreed with a similar decision from the Washington Supreme Court, State ex rel. Pub. Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998), and with the Ninth Circuit’s Stolen Valor Act decision, United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) (see also the Ninth Circuit judges’ opinions discussing the denial of rehearing en banc). But its reasoning is inconsistent with the reasoning of Pestrak v. Ohio Election Comm’n, 926 F.2d 573 (6th Cir. 1991), which upheld a similar law on the grounds that “false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.” The opinion did not cite Pestrak, or State v. Davis, 27 Ohio App. 3d 65 (1985), which reached the same result as Pestrak. (Davis dealt with false statements about a candidate, but included nonlibelous falsehoods, such as lies about oneself.)

This makes it even more likely that the Supreme Court will agree to hear either this case or Alvarez — likely Alvarez, since it will be a few years until the district court and the Eighth Circuit resolve the strict scrutiny question — and decide whether (1) there’s one First Amendment exception for knowingly or recklessly false statements of fact (though with exceptions to the exception, for instance with regard to libels about the government, which are categorically protected), or (2) there are several narrower First Amendment exceptions, for libel, fraud, perjury, false statements that tend to obstruct law enforcement, nondefamatory statements that place someone in a false light, and so on. For more on the subject, see my amicus brief in a Stolen Valor Act case, where I argued in favor of position 1 (though before the Court’s recent United States v. Stevens decision, which seemed to call for a more historical analysis), as well as this post on different kinds of fraud.

Note, though, that the Stolen Valor Act strikes me as an unusually strong case for finding that the lies are unprotected, since banning lies about oneself is especially unlikely to deter constitutionally protected speech — one is rarely mistaken about whether one has won a medal. There’s a plausible argument that lies in an election campaign should be constitutionally protected even under option 1, just as lies about the government, and probably lies about science and history, are constitutionally protected. Punishing such lies is indeed likely to deter even true statements, because speakers who think they’re telling the truth might worry that they might be mistaken, or that a future prosecutor or jury might mistakenly believe that the statements are false. On the other hand, as I argued in my fraud post, it’s not clear why fraudulent attempts to get money (say, charitable donations) should be punishable but fraudulent attempts to get ballot signatures or votes should be constitutionally protected, and why fraudulent statements that interfere with government decisionmaking (e.g., false crime reports, or false statements during an investigation) should be punishable but false statements that interfere with voter decisionmaking should be constitutionally protected.

So this is a difficult question throughout, both as to whether position 1 or position 2 is right, and as to what one does in either position — what areas of constitutionally protected lies one recognizes under position 1 (to minimize the deterrence of true statements), or what specific constitutional exceptions one recognizes under position 2. But one way or the other, there seems to be enough of a circuit split building that the Court is likely to agree to consider the issue in the coming few years.