Crowd-checking a draft amicus brief

Lawyers usually keep their draft briefs confidential until they are filed. But I have a rare situation in which the client — me — is just fine with publicizing a rough draft; and I just want to make the brief as clear and as substantively correct as possible. I therefore thought I’d post the current rough draft, so you folks can tell me where I’m wrong or unclear, and how the brief can be otherwise improved.

Some background, which also explains why I have the chutzpah to just file a brief on my own behalf — last year, I wrote an article on the First Amendment and criminal harassment law, so this announcement from the Massachusetts Supreme Judicial Court made it hard for me to resist chiming in:

From time to time, the Supreme Judicial Court solicits amicus (“friend of the court”) briefs or memoranda from parties not directly involved in a case, but that may have an interest or opinion about a case pending before the court….

SJC-11660 Commonwealth vs. William P. Johnson & another

Whether the criminal harassment statute, G. L. c. 265, § 43A, prohibits so-called cyber harassment, e.g., where a defendant posts a false advertisement on the Internet that causes unwitting third parties to contact the targeted individual; whether the application of the statute in these circumstances impermissibly punished constitutionally protected speech.

Here, then, is what I have so far; please let me know how it can be made better (you can also see a single-spaced PDF version):

* * *
SUMMARY OF ARGUMENT

The government may restrict a considerable range of knowingly false statements about people. But it must do so using a statute that specifically indicates that the statements are forbidden. G. L. c. 265, § 43A, as interpreted by this Court in Commonwealth v. Welch, 444 Mass. 80, 825 N.E.2d 1005 (2005), does not provide this sort of specific indication. Therefore, the convictions in this case should be reversed.

Knowingly false advertisements that invite unwitting third parties to contact a targeted individual are not constitutionally protected. Five Justices in United States v. Alvarez, 132 S. Ct. 2537 (2012), concluded that knowingly false statements are generally less protected than other speech, and can be restricted if the restriction passes “intermediate scrutiny” (i.e., is sufficiently narrowly tailored to a substantial government interest). Protecting targets of such falsehoods against the physical danger and fear caused by such unwanted contacts — in which an unknowing third party feels duped and may suspect the target is the one doing the duping — is a substantial government interest. A carefully defined restriction on these sorts of lies would be narrowly tailored to that interest.

But § 43A is not such a carefully defined restriction. It does not actually put people on notice that it prohibits such advertisements. In Commonwealth v. Welch, 444 Mass. 80 (2005), this Court stressed that,

[T]he Legislature, in carefully crafting the statute, intended the statute be applied solely to constitutionally unprotected speech. Any attempt to punish an individual for speech not encompassed within the “fighting words” doctrine (or within any other constitutionally unprotected category of speech) would of course offend our Federal and State Constitutions. We decline to narrow the statute by engrafting onto it a savings clause or other limiting construction at this time. Should the Commonwealth attempt to prosecute an individual for speech that is constitutionally protected, we would have no hesitation in reading into the statute such a narrowing construction to ensure its application only to speech that is accorded no constitutional protection.

Id. at 99-100 (emphasis added).[1] Yet knowingly false statements about people that do not amount to defamation, fraud, or perjury are not a “constitutionally unprotected category of speech.” Alvarez expressly rejected the view “that false statements receive no First Amendment protection.” 132 S. Ct. 2537, 2545 (2012) (plurality opinion); id. at 2553 (Breyer, J., concurring in the judgment).

Knowingly false statements, like commercial advertising, remain protected, though subject to lesser protection — “intermediate scrutiny” rather than “strict scrutiny.” See, e.g., id. at 2552 (Breyer, J., concurring in the judgment) (concluding that restrictions on knowingly false statements, like restrictions on “nonmisleading commercial speech,” are among the “many instances” in which “intermediate scrutiny” should be applied). “Intermediate scrutiny” is, in turn, defined to mean that the law is sufficiently “narrow[ly] tailor[ed] to “a substantial government interest.” Turner Broadcasting v. FCC, 512 U.S. 622, 662 (1994) (cited by Alvarez, 132 S. Ct. at 2552 (Breyer, J., concurring in the judgment)). And this Court has not interpreted § 43A as in effect reading,

Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts [limited, as to speech, to speech encompassed within the "fighting words" doctrine (or within any other constitutionally unprotected category of speech) or knowingly false statements when restricting the statements is narrowly tailored to a substantial government interest] over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment.

Indeed, any such interpretation would be far too vague to provide proper notice to the public. It is hard enough for a typical citizen to know whether his speech fits within “any . . . constitutionally unprotected category of speech,” including fighting words, true threats, incitement, defamation, and the like. But it would be impossible for a citizen to anticipate whether his speech would be found to be restrictable under “intermediate scrutiny,” which is to say that a restriction on the speech is “narrow[ly] tailor[ed]” to “a substantial government interest.” Judges may be able to, on a case by case basis, apply intermediate scrutiny this way. Ordinary citizens cannot be expected to do so.

For these reasons, amicus asks this Court to reverse the convictions in this case, though the Legislature would be free to ban similar speech through a sufficiently clear amendment to the harassment statute.

ARGUMENT

I.   Knowingly False Statements That Invite Unwitting Third Parties to Contact a Targeted Individual are Not Constitutionally Protected, and May Be Restricted by a Sufficiently Clearly Drawn Statute

Under United States v. Alvarez, 132 S. Ct. 2537 (2012), knowingly false statements are not generally excluded from First Amendment protection, but are treated as less protected. Six Justices in Alvarez rejected the view that knowingly false statements form a categorical exception from First Amendment protection. 132 S. Ct. 2537, 2545 (2012) (plurality opinion); id. at 2553 (Breyer, J., concurring in the judgment). But five Justices rejected the view that such statements are fully protected by the First Amendment. Id. at 2553 (Breyer, J., concurring in the judgment); id. at 2560-62 (Alito, J., dissenting).

As a result, the governing rule appears to be that set forth by Justice Breyer’s concurrence in the judgment: Such statements can be restricted if the restriction passes “intermediate scrutiny.” Id. at 2551-52 (Breyer, J., concurring in the judgment).[2] This test generally asks whether the restriction is “narrow[ly] tailor[ed]” to “a substantial government interest.” Turner Broadcasting v. FCC, 512 U.S. 622, 662 (1994) (cited by Alvarez, 132 S. Ct. at 2552 (Breyer, J., concurring in the judgment)).

In particular, Justice Breyer’s concurrence approved of restrictions that “limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm.” Alvarez, 132 S. Ct. at 2554 (Breyer, J., concurring in the judgment). Such restrictions that focus on harm to particular people, it appears, are seen by Justice Breyer as both supported by an especially important government interest, and especially likely to be well-tailored to that interest (rather than being more extensive than necessary).

A narrow ban on knowing falsehoods about a particular person that are intended to — or are obviously very likely to — cause third parties to be duped into contacting the target seeking some good or service (whether a golf cart, used motorcycle, sex, see, e.g., United States v. Sayer, 748 F.3d 425 (1st Cir. 2014), or anything else), should thus be constitutional. The statements produce a potentially dangerous situation. No-one likes to feel cheated, especially when he has had to invest time or effort to go somewhere. If someone drives out to a house to buy what he is told is a product that will be sold there, and is then told that he has been lied to, he might well be annoyed and even angry. (The same of course is even more so if someone goes to meet a person who was billed as a willing sexual partner, and is told that the person is in fact completely unwilling.)

The cheated person may suspect that the target of the falsehoods is simply unjustifiably trying to back out of an offer, and thus be angry with the target as a result. The target might react brusquely, either because she is surprised by a stranger coming to ask about a good or service that she knows nothing about, or because she is weary of yet another in a dozen people approaching her about the ad. This in turn may be off-putting to the cheated person, who expects the target to be happy about the approach, and may help make the situation more tense and dangerous.

Even if the cheated person quickly realizes that he was duped by a third party, and not by the target, he may still feel humiliated and want to lash out at whoever is present. And even if no violence results, it is likely that the target will feel a sense of danger and fear stemming from a tense situation involving a stranger — especially if the situation is repeated many times, as many strangers response to the deceptive advertisement. (The harm might be especially serious when the falsehoods lead someone to the target’s home, where the target may be least on guard and may most expect peace and repose. See Frisby v. Schultz, 487 U.S. 474, 484 (1988). But even if the falsehood invites people to approach the target at his place of business, the harm may still be substantial enough.)

These possibilities would not suffice to justify restricting fully protected speech. For instance, accurately stating facts about a person is generally constitutionally protected, even if it creates some risk of violence against the person, or creates a sense of fear. See, e.g., NAACP v. Claiborne Hardware, 458 U.S. 886, 903-04 (1982). The same true is of constitutionally protected opinions, at least so long as they do not fit within the narrow exception for incitement of imminent violence. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).

But, under the views of five Justices in Alvarez, knowing falsehoods have less constitutional value and less constitutional protection. This should allow restricting such knowing falsehoods in order to prevent the risk of harm to the identifiable targets of the falsehoods.

This is especially so when none of the potentially valuable features of falsehoods are present. The Alvarez concurrence pointed out that,

False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.

Id. at 2553 (Breyer, J., concurring in the judgment). Yet none of these “useful human objectives” are served by knowing falsehoods that invite unwitting third parties to contact a targeted individual. Nor is there reason to think that these particular knowing falsehoods are so “pervasive[]” that criminalizing them would “provide[] a weapon to [the] government” that it can use “selectively” in a politically based way. Id. (Breyer, J., concurring in judgment) (giving this as another concern justifying striking down a law that banned self-aggrandizing falsehoods).

Thus, a law focused on such knowing falsehoods that invite unwitting third parties to contact a targeted individual should pass the “intermediate scrutiny” required by Alvarez. The interest in preventing the risk of unwanted, potentially dangerous, and likely frightening and disturbing approaches to the targets of the speech should be seen as substantial. And the law would be narrowly tailored to that precise interest.

II.  Section 43A Ought Not Be Read as Restricting Such Knowingly False Statements

Though a narrow, clearly drafted law can prohibit such knowing falsehoods, § 43A is not such a law. In Commonwealth v. Welch, 444 Mass. 80 (2005), this Court concluded that,

[T]he Legislature, in carefully crafting the statute, intended the statute be applied solely to constitutionally unprotected speech. Any attempt to punish an individual for speech not encompassed within the “fighting words” doctrine (or within any other constitutionally unprotected category of speech) would of course offend our Federal and State Constitutions. We decline to narrow the statute by engrafting onto it a savings clause or other limiting construction at this time. Should the Commonwealth attempt to prosecute an individual for speech that is constitutionally protected, we would have no hesitation in reading into the statute such a narrowing construction to ensure its application only to speech that is accorded no constitutional protection.

Id. at 99-100 (emphasis added). This Court thus, without expressly “engrafting onto [the statute] a savings clause or other limiting construction,” in essence interpreted § 43A as reading,

Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts [limited, as to speech, to speech encompassed within the "fighting words" doctrine (or within any other constitutionally unprotected category of speech)] over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment.

But, as noted above, under Alvarez, knowing falsehoods (outside the established categorical exceptions for defamation, fraud, and perjury) are not a “constitutionally unprotected category of speech.”[3] Alvarez expressly rejected the view “that false statements receive no First Amendment protection.” 132 S. Ct. 2537, 2545 (2012) (plurality opinion); id. at 2553 (Breyer, J., concurring in the judgment). The “constitutionally unprotected categories” are categories such as “obscenity,” “defamation,” “fighting words,” and “true threats.” Id at 2554 (plurality opinion). Knowing falsehoods more generally do not constitute such a category. Even when they can be restricted, they can be restricted because the restriction passes intermediate scrutiny (under Justice Breyer’s view) or strict scrutiny (under the plurality’s view) — not because the speech falls within an unprotected category.

Indeed, trying to import intermediate scrutiny into this Court’s reading of § 43A in Welch would leave it impossible for citizens to understand what speech is protected. Any such interpretation of § 43A would make it, in effect, read something like this:

Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts [limited, as to speech, to speech encompassed within the "fighting words" doctrine (or within any other constitutionally unprotected category of speech)] [or knowingly false statements when restricting the statements is narrowly tailored to a substantial government interest] over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment.

Yet even if laypeople can be presumed to know the existing “consti­tutionally unprotected categor[ies] of speech” (such as fight­ing words, threats, incitement, and the like), it would be unreasonable to presume that they can anticipate which government interests will be seen as “substantial” for purposes of intermediate scrutiny, and which restrictions will be seen as “narrowly tailored” to those interests. Tests such as intermediate scrutiny are plausible tools for judges, when the judges are called on to evaluate criminal laws. But such tests are not plausible components of criminal laws themselves.

Nor would it be proper for this Court to retroactively impose a limiting construction on the statute that would protect most speech, but expressly exclude knowing falsehoods inviting unwitting third parties to contact a targeted individual. Nothing in the statutory text, or in the earlier decisions of this Court, suffices to put people on notice of any such distinction.

Cohen v. California, 403 U.S. 15 (1971), offers a helpful analogy here.In Cohen, a California statute banned “offensive conduct,” and it was applied to ban the display of vulgarities in public places. The Court concluded that such a broad ban was unconstitutional.

Cohen himself, though, wore the jacket into a courthouse, and the opinion noted that such speech might be prohibitable by a rule targeted solely to courthouses. Id. at 19; see also ISKCON v. Lee, 505 U.S. 672, 679 (1992) (holding that speech in nonpublic fora may be restricted through reasonable viewpoint-neutral rules). Still, the Court overturned Cohen’s conviction, because nothing in the statute sufficiently clearly defined where such vulgarities would be allowed:

Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. No fair reading of the phrase “offensive conduct” can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.

403 U.S. at 19 (citations omitted). The same applies here. The Johnsons were tried under a statute that, on its face, would cover a wide range of speech, including constitutionally protected speech. That statute, as interpreted by this Court in Welch, would have covered a narrower range of speech, including only speech falling into a “constitutionally unprotected category of speech.”Whether the statute is considered as written or as previously interpreted, there is an “absence of any language in the statute that would have put appellant[s] on notice” that certain speech — knowing falsehoods that invite people to approach the targets of the falsehoods — was being specially punished.

CONCLUSION

For the reasons stated here, amicus curiae respectfully requests that this Court reverse defendants’ convictions — but without precluding the Legislature from crafting a narrower, more precisely defined, ban on false advertisements that cause unwitting third parties to contact the targeted individual.

[Footnotes:]

[1] Welch excluded threats from the coverage of § 43A, 94 n.14, but O’Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012), overturned that aspect of Welch.

[2] Whether such five-Justice concurrence-plus-dissent positions are binding precedent is not entirely clear. On one hand, some Supreme Court precedents take the view that “when no single rationale commands a majority, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgmen[t] on the narrowest grounds.’” See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 764 n.9 (1988) (4-3) (emphasis added) (citing Marks v. United States, 430 U. S. 188, 193 (1977)). Under this view, the dissenters’ votes cannot be included, and thus there is no holding that restrictions on lies are constitutional if they pass intermediate scrutiny (since there are only two votes for that proposition among the Justices who concurred in the judgment). The proper test for restrictions on lies thus remains up in the air, with no binding precedent on this point for other courts.

On the other hand, several other Supreme Court precedents take the view that the holding of a splintered Court is that position taken by a majority of all Justices, whether they concurred in the judgment or dissented. See Alexander v. Sandoval, 532 U.S. 275, 281 (2001) (deriving the holding of Guardians Ass’n v. Civil Service Comm’n of New York City, 463 U. S. 582 (1983), from the views of three dissenters and some of the Justices who had concurred in the judgment); Alexander v. Choate, 469 U.S. 287, 293-94 & nn.8-11 (1985) (same); United States v. Jacobsen,466 U.S. 109, 116-17 & n.12 (1984) (deriving the holding of Walter v. United States, 447 U.S. 649 (1980), from the agreement of the four dissenters and a two-Justice lead opinion); Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 17 (1983) (deriving the holding of Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1983), by combining the votes of the four dissenters and one Justice concurring in the judgment, and expressly noting that “the Court of Appeals correctly recognized that the four dissenting Justices and Justice Blackmun formed a majority” on the relevant legal proposition); see also Waters v. Churchill, 511 U.S. 661, 685 (1994) (Souter, J., concurring) (concluding that “lower courts should apply” the views taken by a majority of the Justices in that case, even when the majority is formed from the plurality and the dissent).

The latter view seems to be the more prominently followed, and it is also sound. When five U.S. Supreme Court Justices concluded in Alvarez that restrictions on lies are generally constitutional if they pass intermediate scrutiny, it makes sense to give this majority sentiment the same respect whether or not some of those Justices were dissenting from the bottom-line result. See 281 CARE Committee v. Arneson, 2013 WL 308901, *6-*7(D. Minn. Jan. 25, 2013) (concluding that “Justice Breyer’s concurrence is the controlling opinion of Alvarez” and that intermediate scrutiny therefore applies).

[3] Amicus filed a brief in Alvarez urging the United States Supreme Court to treat such knowing falsehoods as a constitutionally unprotected category, but that Court rejected this suggestion.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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