Victory for First Amendment in Mass. Political Speech Case; NEFAC Filed Amicus Defending Press Rights

CONTACT Justin Silverman | 774.244.2365 |

The Massachusetts Supreme Judicial Court ruled last week that a statute criminalizing false campaign speech is unconstitutional, saying that the law “chills the very exchange of ideas that gives meaning to our electoral system.”

The New England First Amendment Coalition filed an amicus brief in the case last April expressing “grave concerns” over the statute’s effect on free speech and press freedoms.

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 statute in question — M.G.L. c. 56 § 42 — criminalized 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.”

The statute “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 argued in its amicus 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.”

The SJC held that “§ 42, on its face, is inconsistent with the fundamental right of free speech guaranteed by art. 16 of the Massachusetts Declaration of Rights. Accordingly, the statute is invalid . . .”

The case, Commonwealth v. Lucas, concerned 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.

Massachusetts’ defense of the statute hinged on the claim that political speech may result in defamation or fraud, which are both outside the protection of the First Amendment. The court, however, held that the statute was not narrowly tailored as is required to pass constitutional muster.

“The Commonwealth’s interest in preventing and punishing election fraud remains relevant to the inquiry into the statute’s constitutionality. . . . But any legitimate interest in preventing electoral fraud must be done by narrowly drawn laws designed to serve those interests without unnecessarily interfering with First Amendment freedoms,” according to the SJC opinion. “Thus, the fact that § 42 may reach fraudulent speech is not dispositive, because it also reaches speech that is not fraudulent.”

The court also held that the state did not prove that statute was necessary to accomplish its claimed state interest of free and fair elections.

“This is a victory not only for free speech, but for the freedom of the press,” said Justin Silverman, NEFAC’s executive director. “Had this criminal statute been upheld, there could have been disastrous consequences for publishers and reporters throughout the Commonwealth. This decision reaffirms the idea that the best response to false speech is the truth, and that the government should not be the arbiter between the two. Many thanks to the Cyberlaw Clinic and our fellow amici for helping to defend this fundamental First Amendment principle.”


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, The Boston Globe and Boston University.