On Tuesday, the Cyberlaw Clinic filed an amicus brief (PDF) in the Supreme Judicial Court of Massachusetts on behalf of the New England First Amendment Coalition, Boston Globe Media Partners, LLC (owners of the Boston Globe), Hearst Television, Inc. (owners of WCVB-TV Channel 5 in Boston), the Massachusetts Newspaper Publishers Association, the New England Newspaper and Press Association, Inc., and the New England Society of Newspaper Editors in Commonwealth v. Lucas, SJC-11830. The case was brought under the Massachusetts false campaign speech law, M.G.L. ch. 56 § 42 (“Section 42″). The defendant in the case, a treasurer with a political action committee that sent a mailer in the 2014 state election, challenged the constitutionality of the statute under the First Amendment and Article 16 of the Massachusetts Declaration of Rights.
The brief argues that Section 42 is an unconstitutional restriction on the content of speech, and is also unconstitutionally vague. The brief describes the robust protection for speech in the realm of political debate, and notes several cases in other jurisdictions where courts struck false campaign speech statutes. As those cases note, counterspeech by political opponents is the preferred way to remedy misleading political speech, and statutes that criminalize false speech for the sake of protecting listeners are usually instead used as tools to extract partisan revenge by filing frivolous criminal complaints.
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