In the shadow of Jan. 6, 2021, it has to be one of the hotter topics in politics: what, if anything, to do about the spread of false information in and about American elections. The question has prompted a flood of controversial efforts to rein in online “disinformation.” (The drive to answer it has even brought about the strange sight of First Amendment organizations more accustomed to defending defamation lawsuits filing them instead.) But as recent litigation out of North Carolina highlights, for all of the attention paid to whether the dawn of new media calls for new measures to restrict falsehoods, we don’t lack for old laws that purport to prohibit political lies — it just isn’t obvious that they can survive close contact with the First Amendment.
The case, Grimmett v. Circosta, challenges a 1931 North Carolina statute that prohibits “publish[ing] or caus[ing] to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.” And while the law has been on the books for decades, the plaintiffs allege, the statute has rarely been enforced — until, the suit claims, the losing candidate in the state’s 2020 election for attorney general turned to it as a sword in a dispute between the two campaigns over the candidates’ comparative records clearing the backlog of untested rape kits.
As Professor Eugene Volokh notes in a timely draft article — “When Are Lies Constitutionally Protected?” — courts “are sharply split” on the constitutionality of similar statutes, but recent decisions have tended to invalidate them. (A hat tip is also due to Volokh for flagging the Grimmett litigation on his blog, The Volokh Conspiracy.) The concern isn’t, of course, that protecting the integrity of elections isn’t an important government interest, but instead that drawing a prohibition narrowly enough to avoid chilling protected speech is exceptionally difficult.
Here’s how Justice Stephen Breyer put it in a concurring opinion in United States v. Alvarez, the somewhat confusing split decision in which the Supreme Court affirmed that the First Amendment protects some false speech: “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),” Justice Breyer wrote, “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.”
Apparently the U.S. District Court for the Middle District of North Carolina agrees: On the strength of the Grimmett plaintiffs’ arguments, the court swiftly granted a temporary restraining order against the statute’s enforcement, albeit without much explanation. A preliminary injunction hearing on Aug. 4 will air the parties’ cases in this unsettled area in more detail.
Eventually, it seems likely that the Supreme Court will be called on to clarify the boundaries of the government’s ability to publish false speech outside the traditional bounds of defamation and fraud — especially as a growing number of politicians make no secret of their desire to loosen libel laws to target press coverage they perceive as critical. When those cases inevitably arise, we hope the federal courts will approach them with due concern for the dangers in these waters.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.