The court decided Alvarez the same day as health care. | JAY WESTCOTT/POLITICO SCOTUS OK'd campaign dirty tricks?

An obscure procedural order issued the day after the Supreme Court’s decision to uphold President Barack Obama’s health care law got lost in the saturated media coverage of the health ruling and the palace intrigue over whether Chief Justice John Roberts switched his vote and alienated his conservative colleagues. Without comment or dissent, the justices declined to hear Minnesota’s appeal of a federal appeals court ruling in 281 Care Committee v. Arneson — holding that Minnesota’s law banning false campaign speech about ballot measures is likely unconstitutional under the First Amendment. The result could be even nastier campaigns and more political dirty tricks.

Minnesota had asked the Supreme Court to hold its petition until the court decided United States v. Alvarez, the so-called “Stolen Valor” case. The court decided Alvarez the same day as health care, striking down as a free speech violation a federal law making it a crime to falsely claim to be a recipient of the Congressional Medal of Honor.


Alvarez casts considerable doubt over when, if ever, states can take actions to combat false campaign statements and campaign dirty tricks — including lying about the location of a polling place or the voting date. The court could have used the 281 Care Committee case to clear up the muddle next term. But it just denied the petition.

Without new clarity, I expect anyone charged with making election-related lies to raise a First Amendment defense. Which they just may win.

It’s too bad the Supreme Court didn’t take the 281 Care Committee case, because the current uncertainty over false campaign speech laws provides an opening for those who might consider using political dirty tricks in November. The government has a compelling interest in stopping that kind of voter suppression — even if we don’t trust it to police campaign statements.

Before Alvarez, the Supreme Court had recognized certain categories of speech and expression, like “fighting words,” which were not entitled to any First Amendment protection. The U.S. government, defending the Stolen Valor law in Alvarez, relied on statements in earlier Supreme Court cases suggesting that deliberately false speech is similarly undeserving of First Amendment protection.

Four justices, led by Justice Anthony Kennedy, rejected the government’s argument, ruling that laws regulating lying are subject to “strict scrutiny” under the First Amendment — the court’s toughest standard of review, under which few laws can survive. (The court did indicate that certain longstanding laws barring certain false statements, like perjury laws, remained constitutional.)

“Only a weak society,” these four justices concluded, “needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.”

Justice Stephen Breyer, joined by Justice Elena Kagan, agreed with Kennedy’s conclusion that even false speech is usually entitled to some First Amendment protection, and that the Stolen Valor law was unconstitutional. But Breyer applied an “intermediate scrutiny” test for laws punishing false speech — determining a law’s constitutionality by balancing the speaker’s First Amendment rights against the government’s interest in preserving the truth in particular contexts.

Breyer’s opinion noted the special difficulty of laws punishing false statements in the context of political campaigns, where prosecutors might use false campaign speech laws for political reasons, going after political opponents. In this area, the “risk of censorious selectivity by prosecutors is… high.”

Breyer noted, more generally, that laws punishing political speech raised especially difficult questions under his balancing test. “In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and conse­quently can more easily result in censorship of speakers and their ideas.”

Applying this test, Breyer expressed doubts about the constitutionality of a law that barred a candidate from falsely claiming to be an incumbent. “Without ex­pressing any view on the validity of those cases,” Breyer wrote, “I would also note, like the plurality, that in this area more accu­rate information will normally counteract the lie.”

Even the dissenters who would have upheld the Stolen Valor law—Justices Samuel Alito, Antonin Scalia and Clarence Thomas — indicated a concern about laws regulating false political speech. When the government, for example, decides whether a statement about history is false, “the potential for abuse of power…is just too great.”

There is much to be said for the justices’ skepticism of laws that punish false statements made about candidates or ballot measures in campaigns. Rather than rely on a government body or state court to find the “truth,” we expect rival campaigns, the media and the public to accomplish this function. We don’t need a government truth commission to tell us if Sen. X really voted for a middle class tax increase five years ago.

But the rule should be different for prosecutions involving campaign dirty tricks perpetrated through lies. When a person deliberately gives wrong information about where or when to vote, the kinds of identification that must be presented to vote or other false statements about the mechanics of voting, the state should be able to punish the liar.

Such speech is aimed at suppressing the vote — not about whether to convince the public whom to vote for. Punishing false speech aimed at voter suppression won’t chill legitimate activity; it will just punish the wrongdoers.

First Amendment scholar Eugene Volokh considered the impact of Alvarez on political campaign speech laws. He says that the courts “might” uphold a narrow law punishing false campaign speech about where and when to vote. “It’s just hard to tell,” Volokh wrote, “given both the limited scope of the opinions and the 4-2-3 split.”

Let’s hope that uncertainty doesn’t embolden more political operatives to cross the line into chicanery and dirty tricks.

Richard L. Hasen is professor of law and political science at University of California, Irvine School of Law and author of the Election Law Blog. His book, “The Voting Wars: From Florida 2000 to the Next Election Meltdown” is due out this summer.

This article tagged under: Opinion

Supreme Court