Tennessee Court Strikes Down Law Criminalizing Calling Political Candidates 'Literally Hitler'

from the literally-the-worst-law dept

Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits — including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state’s new anti-SLAPP law, litigation is slightly less vexatious these days.

But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.

The statute says this:

It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.

The plaintiffs argued the law effectively criminalized satire and hyperbole. It pointed out it risked prosecution if it distributed its campaign material, which used a word that literally no longer can be taken literally in every context: “literally.” From the decision [PDF]:

[T]he Complaint explains that the Plaintiff has described in its literature one State Representative as “Hitler”, who supported eugenics, i.e. state-sponsored chemical castration of convicted sex offenders. The Plaintiff’s analysis in its Complaint is that, “Because Representative Griffey is not, in fact, ‘literally Hitler,’ and because Tennesseans for Sensible Election Laws knows that Representative Griffey is not literally Hitler, Tennesseans for Sensible Election Laws’ campaign literature would violate § 2-19-142, thus subjecting members of Tennesseans for Sensible Election Laws to criminal prosecution carrying a sentence of up to thirty days in jail and/or a fine not to exceed $50.00.

Here’s the mailer the group says could get its members criminally charged:

The activist group says this is unconstitutional. It certainly seems to be, but the state’s Attorney General apparently believes prosecuting people for engaging in political speech isn’t a Constitutional issue. Here’s the opinion the state AG offered in support of the law:

A prosecution against a newspaper or other news medium under Tenn. Code Ann. 2-19-142 would not raise any constitutional objections…

This statement, made in 2009, has not aged well. The Constitutional challenge has arrived. And it’s victorious. The campaign focused criminal defamation law violates both the US Constitution and the state Constitution. And for several reasons (all emphasis in the original):

First, Tennessee Code Annotated § 2-19-142 punishes only false political speech in opposition to candidates for elected office, while permitting false speech in support of such candidates. Such viewpoint discrimination is incompatible with the First Amendment, and no compelling interest supports it.

Second, Tennessee Code Annotated § 2-19-142 exclusively penalizes false campaign literature opposing candidates seeking elected office, while permitting all other false campaign literature and all speech regarding noncandidates. Such content-based restrictions on speech similarly contravene the First Amendment.

Third, Tennessee Code Annotated § 2-19-142’s criminalization of “false” speech cannot be reconciled with the U.S. Supreme Court’s decision in United States v. Alvarez, 567 U.S. 709 (2012), which held that a statement’s falsity alone is insufficient to remove it from the ambit of protection guaranteed by the First Amendment.

Fourth, Tennessee Code Annotated § 2-19-142 is unconstitutionally overbroad because it prohibits a substantial amount of constitutionally protected speech, both in an absolute sense and relative to the statute’s legitimate sweep, and because a substantial number of instances exist in which § 2-19-142 cannot be applied constitutionally.

Fifth, by restricting speech based on its content, by proscribing protected speech, and by criminalizing political speech based on viewpoint, Tennessee Code Annotated § 2-19-142 contravenes the more expansive protections of article I, section 19 of the Tennessee Constitution.

The court declares the law a violation of both the First and Fourteenth Amendments. The plaintiffs are free to call candidates they feel align with Hitler’s beliefs “literally Hitler,” even when said candidates are, obviously, not the long-dead German chancellor known affectionately as the “worst person in the world.”

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Comments on “Tennessee Court Strikes Down Law Criminalizing Calling Political Candidates 'Literally Hitler'”

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22 Comments
Bodger says:

Outlaw Falsehoods

Would anybody seriously try to establish a law banning lying by politicians? That is the stock-in-trade of pols everywhere. It would be a good bet that anybody in a legislature passing such a law would have achieved said position by lying their asses off in various and sundry ways.

My modest proposal is that every person running for and occupying a political position be sworn to a oath similar to that given to jurors: truth, whole truth, nothing but etc under penalty of law. If we can hold one group of people to that standard under threat of punishment why not pols who surely wreak more damage? The restriction would apply during any campaigning and time in office but would be dropped after a period of maybe four years so that the pol could lie freely in their biographies.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

Yes, that seems to come out of the crazy discretion barrel. You know, like if some popular wealthy white guy just has to be charged, then 50 spacebucks. People we don’t think are so cool, up to 30 days in the slammer.

Seems like the sentencing clause was begging for a constitutional challenge all by itself.

Uriel-238 (profile) says:

Even if you don the mustache...

I cringe when literally is used to mean emphatically rather than factually. Yes, the preponderance of this error has driven the meaning of the word literal to change, but I cringe all the same. To beg the question is turning into to raise the question. I cringe a lot.

If someone is going to call a candidate literally Hitler the least they can do is cite the specific platform of that candidate and juxtapose it to the relevant NSDAP platform, or a specific law Hitler signed into place as Chancellor of Germany. (He did quite a lot. It shouldn’t be that hard.)

Vidiot (profile) says:

Too bad this statute has been invalidated… I found it helpful!

When I look at that handbill, I understand that Adolph Hitler has risen from the dead, his scorched molecules reassembled themselves, and he was running for office in Tennessee in 2009. It could also be that he successfully slipped away to Brazil in 1945, and chose to run for office at a spry 119 years of age; but I’m not too sure about that.

But either way, this whole thing has created confusion in my mind… and isn’t that the best reason to criminalize something?

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