As to the first reason, the court found that a plain reading of the statute revealed it encompasses truthful statements. “Under this law, prosecutors need never show—or even allege—a ‘derogatory’ statement was false so long as they contend the speaker acted with reckless disregard of its truth or falsity,” the court observed. The court concluded the First Amendment prohibits the statute’s apparent attempt to criminalize truthful criticism.
Content-Based Distinctions Fail Strict Scrutiny
Even if the statute does not encompass true statements, the appellate court found it nonetheless “fails constitutional scrutiny because it draws impermissible content-based distinctions in identifying which speech to criminalize.” The court observed that the statute engages in “textbook content discrimination” by limiting its reach to statements about political candidates.
“Under this statute, speakers may lie with impunity about businesspeople, celebrities, purely private citizens, or even government officials so long as the victim is not currently a ‘candidate in any primary or election,’” the court noted. The fact that the statute is limited to statements “calculated or intended to affect the chances of such candidate[s] for nomination or election” only exacerbates the problem, the court explained.
The statute’s “careful limitation to only a subset of derogatory statements to which elected officials may be particularly hostile” rendered it unlikely to survive constitutional muster. By focusing on speech about political candidates, the statute raises the “possibility that official suppression of ideas is afoot,” reasoned the court. The statute was not necessary to achieve a compelling state interest because a statute that applied equally to all individuals would accomplish the same purpose. Thus, the plaintiffs were likely to prevail on the merits of their First Amendment challenge to the statute, the court held.
Section Leaders Agree with the Appellate Court’s Ruling
Litigation Section leaders agree that the libel statute at issue likely violates the First Amendment. They are cognizant, however, of the delicate balance libel statutes must strike between sanctioning those who knowingly spread blatant lies and encouraging robust discussion of important political issues.
“The Fourth Circuit got this one right,” declares Jonathan W. Peters, Athens, GA, chair of the Section’s First Amendment Subcommittee of the Civil Rights Litigation Committee. “The First Amendment provides the highest level of protection to speech about politics and public affairs, and libel law provides the lowest level of protection to public officials and figures, in part on the theory that they can defend themselves more easily through public channels,” Peters contends.
This decision appears to follow the lead set by the U.S. Supreme Court. “The Supreme Court has recently protected even false speech in the ‘stolen valor’ case of United States v. Alvarez. Given the Supreme Court’s recent precedent and its protection for political speech in particular, I would be surprised if this decision were reversed,” opines Cassandra Burke Robertson, Cleveland, OH, chair of the Section’s Civil Rights Litigation Committee.
But the risk of falsehoods in the political process remains a concern. “Individuals need all the information possible to exercise their democratic rights, but that becomes very problematic when you have the spread of false information and people making decisions based on downright lies. So it makes sense to me that states would be trying to pass or resurrect some of these statutes for false speech and to have real sanctions for false speech,” Robertson reasons.
Even accounting for constitutional issues, action to ensure election truth may be warranted. “I am sympathetic to the plight of individuals in the age of ‘alternative facts.’ Individuals should not be able to lie with impunity,” declares Carlos Moore, Grenada, MS, cochair of the Section’s Civil Rights Litigation Committee.