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Ban on knowingly false statements in ballot measure campaigns is unconstitutional

Minnesota, like some other states, has a statute criminalizing knowingly false statements in ballot measure campaigns. Complaints under the statute can be brought by anyone, and are lodged in the first instance with the Minnesota Office of Administrative Hearings (OAH); the OAH can impose civil penalties, and after proceedings before the OAH are done, a county attorney can then initiate a prosecution.

Tuesday’s 281 Care Committee v. Arneson (8th Cir. Sept. 2, 2014) struck down the statute. Though the government argued that the ban was aimed at preventing fraud on the voters, the court concluded that the law wasn’t narrowly tailored to that interest. The court began by concluding that the proper test was strict scrutiny; though Justice Stephen Breyer’s controlling opinion in Alvarez v. United States called for intermediate scrutiny of at least some restrictions on knowing falsehoods, the court concluded that this doesn’t apply to regulations specifically targeted at political speech (at least in the sense of speech about political campaigns).

The court also concluded that the law was unconstitutionally underinclusive in certain ways, and that counterspeech was the better solution for the problem (an imperfect solution, but less so than the prohibition). But the heart of the analysis, I think was this (some paragraph breaks added):

[Section] 211B.06 does not survive strict scrutiny because it tends to perpetuate the very fraud it is allegedly designed to prohibit…. In SBA List [a recent Supreme Court precedent from Ohio that dealt with a similar statute but focused only on a procedural issue -EV], the Ohio Attorney General himself (Ohio AG), though charged simultaneously with the zealous representation of the Ohio Elections Commission in the same action, took the unique and rare step of filing an amicus brief as a “friend of the Court and the legal process” and as Ohio’s “chief law officer” to enlighten the Court as to the “actual workings and effect of the Ohio false statements statute [which is similar to the Minnesota statute -EV] in practice.” Many of the concerns expressed by the Ohio AG made headway with the Court and resonate here as well.

First, as a practical matter, it is immensely problematic that anyone may lodge a complaint with the OAH [Minnesota Office of Administrative Hearings] alleging a violation of § 211B.06. There is no promise or requirement that the power to file a complaint will be used prudently. “Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents.”

Complaints can be filed at a tactically calculated time so as to divert the attention of an entire campaign from the meritorious task at hand of supporting or defeating a ballot question, possibly diffusing public sentiment and requiring the speaker to defend a claim before the OAH, thus inflicting political damage. Just as the Court explained in the context of the Ohio false statements statute, section § 211B.06 makes anyone speaking out about a ballot question “easy targets.”

[Footnote:] The Ohio AG describes the inherent problems as well:

It is not unduly cynical to suggest … that in at least some Elections Commission matters, complainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election…. Even where the Commission does not find probable cause, the damage is often done. The speaker is forced to use time and resources responding to the complaint, typically at the exact moment that the campaign is peaking and his time and resources are best used elsewhere. In other words, the State has constructed a process that allows its enforcement mechanisms to be used to extract a cost from those seeking to speak out on elections, right at the most crucial time for that particular type of speech. And if the allegations turn out to be unfounded, there is no possibility of timely remedy.

… The Ohio AG … explained that by its nature, the “statutory scheme pulls within its ambit much protected speech.”

Few respondents contest an adverse Commission finding in court because the election will be over, won or lost, by the time any judicial hearing takes place, and so the remedy is largely meaningless. Even if the speaker is ultimately victorious, that speaker gets little or nothing for his or her efforts but additional legal bills. Nevertheless, the few challenges that do take place demonstrate that the State administrative apparatus affects a good deal of speech that is well within the ambit of constitutionally protected speech, and that the remedy is rarely, if ever, a timely one.

Between 2001 and 2010 in Ohio, for example, their commission (the body in Ohio charged with similar duties as Minnesota’s OAH to review these complaints) found violations of their respective false statements statute in 90 cases. Additionally,

the Commission dismissed another forty-eight cases after a hearing, and 112 were dismissed because the complainant withdrew the complaint or failed to prosecute (typically after the election — a further indication that the goal may often be less an ultimate finding of a violation than a probable-cause finding before the election). Two hundred sixty were dismissed with findings of ‘no probable cause.’

The Ohio AG included such figures to illuminate that in reality “numerous speakers who have not made a false statement even under the modest burden of proof for ‘probable cause,’ are forced to devote time, resources, and energy defending themselves before the Elections Commission, typically in the late stages of a campaign.”

We do not cite to the Ohio AG statistical offerings to imply that just such empirical evidence is required to establish the causal link between § 211B.06 and the interests it is in place to protect. Nor do we cite the Ohio AG’s explanation of how that state’s false statements statutes are working in practice to imply that, in fact, the exact same reality must exist in Minnesota. The Ohio AG’s explanation, however, clearly exemplifies the potential for abuse and an absence of narrow tailoring of the Minnesota law — and thus, a lack of necessity….

For all practical purposes, the real potential damage is done at the time a complaint is filed, no matter the possibility of criminal prosecution down the line. The burdens of the OAH proceedings themselves greatly impact electoral speech and are cause for concern. Even before a probable cause hearing, the allegation of the falsity itself likely makes the news circuit and creates a stir in the ongoing political discourse.

Practically, should probable cause be found by the ALJ when the complaint is filed close to an election, no judicial review can take place to effect any relief prior to the impending election. So, the damage is inflicted at the point of filing, even if the complainant is ultimately unable to prove up the allegations of falsity under the clear and convincing standard required during a resulting evidentiary hearing that would occur after a finding of probable cause.

Essentially, then, this damage (or injury) occurs quite easily, at the whim of “anyone” willing to file a complaint under oath. Not only does this injury occur upon filing, it only deepens upon the finding of probable cause. At bottom, then, this core political speech is penalized using a burden of proof even lower than a preponderance of the evidence, with few, if any, safeguards to protect this “zenith” of First Amendment-protected political speech.

The county attorneys seem to presume without question that “exaggerations, conjecture, or illogical inferences,” which they claim is all Appellants wish to convey, are not within the scope of § 211B.06 and are thus not at risk. But, they cannot support such a claim. Anyone can file a complaint under § 211B.06 and it is only at that time that the OAH begins to decide whether a violation has occurred. At that point, however, damage is done, the extent which remains unseen. Section 211B.06 is thus overbroad because although it may seem axiomatic that particular speech does not fall within its scope, there is nothing to prohibit the filing of a complaint against speech that may later be found wholly protected. We have examples of just such protected speech in the record submitted by both sides, found within the OAH orders, both from prima facie determinations and following evidentiary hearings by a three-judge panel.

[Footnote: For example, the county attorneys filed OAH orders issued by three-judge administrative panels to demonstrate, in part, that no criminal prosecutions have taken place under § 211B.06 since the OAH process was put in place in 2004. These filings demonstrate civil challenges under § 211B.06 against false statements disseminated “with respect to the personal or political character or acts of a candidate,” which are also actionable under § 211B.06 but are not at issue in this case. All of the orders, however, serve as examples of statements that get challenged nonetheless, even though they are either true or do not fall within the ambit of § 211B.06.

One order filed by the county attorneys addresses a complaint filed by a citizens’ group that supported passing a school bond referendum that challenged seventeen statements made in campaign material disseminated to urge voters to vote against the referendum. The complaint was filed under § 211B.06 and the statements were made in the context of a ballot initiative asking voters to vote on a $25.6 million bond referendum to finance a new school building. Fourteen of the alleged violations were dismissed at the outset by an ALJ making the initial inquiry and three survived the initial prima facie inquiry. Following the evidentiary hearing on those three statements, the OAH dismissed the entire complaint.

Examples of challenged statements in connection with the referendum were: (1) “Like most Minnesotans, HLWW taxpayers saw their tax support of schools shift from property taxes to state income taxes a few years ago,” (2) a statement that the particular delivery method chosen by the school district will “take the District out of the majority of the construction details, decisions and quality control” and (3) a statement by the respondent that “I have personally been offered a bribe by SGN Architect’s — free tickets to the Twins game during the World Series.” Following the month-long hearing process, the OAH panel ultimately held that each of these statements were either true, or merely statements of opinion that were not false, or were not made “with respect to the effect of a ballot question” as § 211B.06 requires.]

In any event, if you’re interested, read the whole opinion, though I should note that it’s long. I’m not sure the result is right, and I’m skeptical about some of the reasoning. (I also found the style to be a bit overwrought, but that’s just my personal reaction.) Still, I think that the practical problems with these laws that the court points to are quite serious, and may indeed make the laws into very poor tools for dealing with deception of voters.

Congratulations to Erick Kaardal, who was one of the lawyers for 281 Care Committee, and who has been kind enough to agree to be local counsel for a forthcoming UCLA First Amendment Amicus Brief Clinic case.

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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