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

Free Speech

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.”

Filed Under: 1st amendment, campaign laws, campaign literature, false information, free speech, tennessee