NEFAC Files Amicus in Mass. Political Speech Case: Statute Presents ‘Grave Concerns’ to Press Freedoms

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The New England First Amendment Coalition filed an amicus brief yesterday with the Massachusetts Supreme Judicial Court arguing that a statute criminalizing false campaign speech presents “grave concerns” to the freedom of the press.

The statute — M.G.L. c. 56 § 42 — criminalizes the publication of “any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate.”

“This potentially ascribes liability to publishers of third-party information, even when the public well understands that they are not the originators of that speech,” NEFAC and its fellow amici argued in the brief. “Newspapers routinely carry letters to the editor, advertisements, and other forms of third-party media. Under one reading of Section 42, a newspaper could be responsible for any and all falsehoods in those pieces.”

Attorneys Andy Sellars and Chris Bavitz at the Berkman Center for Internet & Society at Harvard University drafted the brief on behalf of NEFAC. Boston Globe Media Partners, the Massachusetts Newspaper Publishers AssociationHearst Television, the New England Newspaper & Press Association and the New England Society of Newspaper Editors all joined the brief in support.

The case before the SJC is Commonwealth v. Melissa Lucas, which involves a political action committee that urged citizens last year to vote against state Rep. Brian Mannal during his reelection campaign. Jobs First Independent Expenditure Political Action Committee distributed fliers that accused Mannal of “putting criminals and his own interest above our families” and wanting to “use our tax dollars to pay defense lawyers like himself to help convicted sex offenders.”

Supported by editorials and letters to the editor in local newspapers, Mannal decried the fliers as misleading and inaccurate. He then proceeded to win reelection. Despite the political victory, however, the representative attempted to hold the PAC’s treasurer, Melissa Lucas, criminally responsible for the speech. To do so, he relied on the rarely-used Section 42, a law that predates all modern First Amendment jurisprudence.

As explained in the brief, Section 42 should be deemed unconstitutional for the following reasons:

  • Political speech is protected under both the First Amendment of the federal constitution and Article 16 of the Massachusetts constitution, and courts that have recently considered “false campaign speech” statutes have found these laws.
  • The statute is unconstitutionally vague and could potentially extend to a “staggering array” of speech related to politics.
  • Section 42 makes no distinction among publishers, distributors, or the original speaker, and covers virtually any statement that could be described as false.

“This law may not only chill political speech, but it could also expose publishers and journalists to criminal liability for simply reporting the news,” said Justin Silverman, NEFAC’s executive director. “We’re hopeful that the court will see how this law is in tension with some of the most basic First Amendment principles.”


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Foundation, and Boston University.