False Statements and Actual Malice: Courts
Rethink What’s Required to Protect Free Speech
ASHLEY MESSENGER
W
hen legislators want
to craft a law restricting speech, they must
keep First Amendment principles in mind. Any law
that imposes a flat ban on speech will
likely be deemed unconstitutional.
Thus, if there are any legitimate hopes
of creating an enforceable standard,
legislators must consider what kinds
of restrictions could plausibly be permitted. They often look to the tests
and rules established by the Supreme
Court in First Amendment cases in
an effort to mirror the Court’s doctrinal principles.1
State legislators have, for example,
targeted “false speech” in the context
of political campaigns. The underlying goal is superficially admirable: to
prohibit candidates for office or their
representatives from making false statements that mislead the public. Voters
need to be informed so they can make
good choices in elections. If they are
misled into believing false information,
election results may be skewed from
what the voters would have otherwise
intended.
The problem, of course, is how to
craft legislation that promotes such
a goal, which clearly impacts speech,
without running afoul of the First
Amendment. Legislators considering
this issue therefore adopted a constitutional principle from the Supreme
Court that they thought would withstand constitutional scrutiny: actual
malice. Many state laws prohibit making false statements in the course of a
political campaign if the speaker has
acted with “actual malice,” which is
Ashley Messenger is senior associate
general counsel to NPR, specializing in First
Amendment and media law. She is also an
adjunct professor at American University
in Washington, D.C., and the author of A
Practical Guide to Media Law. The author
thanks Megan Glass, counsel to NPR, for
her assistance with this article.
knowledge that the statement is false
or reckless disregard for the truth.2
The appeal of the actual malice
standard is obvious. It was first used
in New York Times Co. v. Sullivan,
a libel case brought against the New
York Times because the paper ran a
political advertisement that reflected
poorly on southern officials. The
Court noted that false statements are
“inevitable in free debate” but that
lies made with knowledge of falsity
or reckless disregard of the truth are
not entitled to constitutional protection.3 The actual malice standard
is supposed to provide “breathing
room” for speech on important issues
while also maintaining the ability to
seek a remedy in egregious cases.4 It
has been the accepted test for providing constitutional protection in cases
involving false statements5 for over
50 years.
It is worth noting explicitly that
the Court found it necessary to offer
constitutional protection to speech
in libel lawsuits because libel claims
were being used abusively during the
civil rights era to silence criticism of
government officials.6 Alas, it seems
history repeats itself. In September
2014, two different courts, interpreting two different state laws, found that
so-called “false statement” laws were
being used abusively to silence criticism of those running for office.
281 Care Committee v. Arneson
In 281 Care Committee v. Arneson,7
the U.S. Court of Appeals for the
Eighth Circuit considered a Minnesota
state law that criminalized false statements made in the course of a political
campaign if the person knows the
statement is false or communicates it
with reckless disregard of whether it is
false.8 Its opinion, issued September 2,
2014, applied strict scrutiny because
the law restricts political speech on its
face.9 The court acknowledged that
the interest in preserving fair elections
and preventing fraud on the electorate
could be a compelling state interest,
but decided that it need not determine
that question because the law was not
narrowly tailored.10
The government argued that the
law was narrowly tailored because it
required “actual malice.”11 Following
the logic of Sullivan, the government
argued that such a requirement provides the “breathing space” necessary
to protect free speech while still allowing punishment for known lies.12 The
government also argued that counterspeech is not as effective in achieving
the purpose of ensuring fair elections
and preventing fraud.13
The court rejected all of the government’s arguments. Most importantly,
the court found that this kind of false
statement law will “perpetuate the very
fraud it is allegedly designed to prohibit.”14 First, the court found that it
is “immensely problematic” that any
person can lodge a complaint under
the law.15 There is a real risk of abusive complaints being filed by political
opponents who simply seek to ensnare
candidates in lengthy, expensive, and
protracted administrative proceedings
that take time and money away from
actual campaigning.16 The court also
noted that much of the speech that is
subject to complaints may be protected
speech, such as opinion, exaggerations,
or conjecture, rather than false factual
assertions.17 Thus, many speakers will
be forced to defend themselves without
cause, and there is clearly “potential
for abuse.”18
Although a county attorney in Minnesota filed an affidavit stating that he
has not commenced any criminal prosecutions under the law, the court found
there was nevertheless a chilling effect
on speech: “For all practical purposes,
the real potential damage is done at the
time the complaint is filed, no matter
the possibility of criminal prosecution
down the line.”19 The accused must
still navigate his or her way through
Published in Communications Lawyer, Volume 31, Number 3, Summer 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
the administrative proceeding, and
a final determination might not be
made before election day.20
The court also directly disputed
the government’s position, noting that
counterspeech is, indeed, the most effective—and least restrictive—response
to any potential false speech, and cited
to the Supreme Court’s assertion to
that effect in Alvarez: “The remedy
for speech that is false is speech that
is true.”21
Most importantly, the court concluded that the actual malice standard
does not adequately safeguard speech
and is constitutionally inadequate
under the circumstances. The chilling
effect of potential abuse is not lessened by the mens rea requirement,
nor are there any other mechanisms
in place to halt abuse of the law. The
court opined:
It is in the political arena where
robust discourse must take place.
And although there are certain outright falsities one could
envision in the discussion of a
proposed ballot question, especially when considering there
are hotly debated sides to every
issue, it seems that too often
in that situation, the “falsity”
deemed by one person actionable under [the law] will be a
statement of conjecture about
the future state of affairs should
the ballot question pass or fail.
Despite the certainty of conjecture, however, the state may not
prevent others from “resort[ing]
to exaggeration, to vilification
of men who have been, or are,
prominent in church or state,
and even to false statement.”
Such “back and forth” is the
way of the world in election discourse. “[S]ome false statements
are inevitable if there is to be an
open and vigorous expression
of views in public and private
conversation . . . .” We therefore
leave room for the rough and
tumble of political discourse for
the farfetched. “[P]olitical speech
by its nature will sometimes have
unpalatable consequences, and,
in general, our society accords
greater weight to the value of
free speech than to the dangers
of its misuse.”22
Susan B. Anthony List v. Ohio
Elections Commission
Then, on September 11, 2014, the
U.S. District Court for the Southern
District of Ohio issued an opinion in
Susan B. Anthony List v. Ohio Elections Commission23 that struck down
a similar Ohio law and more or less
mirrored the reasoning in 281 Care
Committee. The Ohio law criminalized false statements about a candidate
made with actual malice and designed
to promote the election, nomination,
or defeat of a candidate.24
The court noted that the law’s procedures will burden speech. Anyone
can file a complaint. “In fact, political
candidates have exploited the statute
to silence opponents by strategically deploying OEC [Ohio Elections
Commission] complaints to burden
and distract their electoral rivals.”25
There is no system to weed out frivolous complaints, and the accused is
subject to a probable cause hearing.
“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.”26 Once probable cause is
found, a “very low hurdle,” candidates can delve into the confidential
communications of their opponents.27
The court further opined that the
public may perceive the OEC finding to be a definitive pronouncement
on truthfulness, which it is not. And
complaints are often timed so that
no judicial review can occur before
the election. Complainants routinely
move to dismiss the complaints after
the election is over, having inflicted
the desired damage to opponents.28
In finding the false statements
law to be unconstitutional, the court
emphasized the Supreme Court’s
statement in Alvarez that “[t]he remedy for speech that is false is speech
that is true.”29 The remedy should be
more speech, not enforced silence.
The court also endorsed the view
that the people, not the government,
should decide what is true in matters
of political concern. The plaintiffs
argued that they were not “arguing for
a right to lie,” but instead for a “right
not to have the truth of our political
statements be judged by the Government.”30 The court was persuaded
that the distinction was “critical” and
“based on the quintessential truth that
‘[t]he First Amendment itself reflects a
judgment by the American people that
the benefits of its restrictions on the
Government outweigh the costs.’”31
The court, citing Sullivan, noted
that “false statements are inevitable
if there is to be an open and vigorous expression of views.”32 However,
the court distinguished false political speech from cases where there are
“important private interests,” such
as fraud or defamation.33 The court
therefore concluded that it must apply
strict scrutiny, because the law is a
content-based restriction on speech.
Although the court acknowledged
that protecting the integrity of elections would be a compelling interest,
the court found that the law did not
actually protect that interest and was
not narrowly tailored. Among the
court’s findings, it stated that the law
burdens truthful speakers and liars
equally, it puts the government in the
paternalistic position of being the
arbiter of truth, it chills a substantial amount of truthful or protected
speech, and it is subject to abuse.
Again, the court specifically disputed the government’s contention
that the mens rea requirement provides “breathing space” for speech,
because even truthful speakers are
subject to the burdens of an OEC
proceeding, including burdensome
discovery into the candidate’s communications and strategic discussions.
The court concluded:
We can all agree that lies are
bad. The problem is, at least
with respect to some political
speech, that there is no clear
way to determine whether a
political statement is a lie or the
truth, and we certainly do not
want the Government (i.e., the
OEC) deciding what is political
truth anyway, for fear that the
Government might persecute
those who criticize the Government or its leaders.34
Conclusion
These cases show that courts are
beginning to scrutinize whether the
actual malice standard is sufficient
to provide constitutional protection
to speech, at least in some circumstances. Although the standard may
Published in Communications Lawyer, Volume 31, Number 3, Summer 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
have made sense in the context of Sullivan, it doesn’t actually make sense
in all libel cases.35 The problems
the courts have noted with the false
statement laws simply provide more
evidence that “actual malice,” on its
own, is not an adequate standard
for protecting speech. We may need
“knowledge of falsity” to be a part of
the test we use to determine whether
speech is unprotected, but it cannot
be the entire standard.
Moreover, it is important for courts
to recognize that we need stronger constitutional safeguards in all cases where
laws can be used abusively to silence
speech. The courts were correct in finding that false statement laws can be
used abusively, and that potential for
abuse raises serious constitutional concerns. However, the potential for abuse
also exists with respect to libel and
other kinds of claims, where plaintiffs
use the law to silence criticism or intimidate opponents.36 Anti-SLAPP laws
can be used to minimize the potential for abuse in some cases, but not all
states have such laws,37 or they might
not be applied in federal court.38 Nevertheless, courts can always choose to
provide a remedy based in the constitutional guarantee of free speech, but
perhaps it is time to formulate a test
that is more thoughtful and rigorous
than “actual malice.”
Endnotes
1. For example, when states attempted
to ban the sale of violent video games to
minors, they borrowed concepts from the
Court’s obscenity test set forth in Miller
v. California, 413 U.S. 15 (1973). See
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct.
2729 (2011) (concluding that violence is
not obscenity and statute purporting to
restrict violent video games is not constitutional despite following the Miller test).
2. The actual malice standard was
adopted by the Supreme Court in New
York Times Co. v. Sullivan, 376 U.S. 254
(1964), to provide constitutional protection to statements in libel cases. The
standard was further developed in Garrison v. Louisiana, 379 U.S. 64 (1964)
(requiring a high degree of awareness
of probable falsity under actual malice standard); Beckley Newspapers Corp.
v. Hanks, 389 U.S. 81 (1967) (finding
that actual malice requires more than a
showing of ill will or malice in the ordinary sense of the term); St. Amant v.
Thompson, 390 U.S. 727 (1968) (clarifying
the meaning of actual malice by defining
reckless conduct); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S.
485 (1984) (applying a clear and convincing evidence standard to actual malice);
and Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657 (1989) (noting
that a public figure plaintiff must prove
more than an extreme departure from
professional standards).
3. Sullivan, 376 U.S. at 271–72, 280–81.
4. Id. at 298.
5. The test is used primarily in libel
cases, but it has also been used in false
light privacy cases, see, e.g., Time, Inc. v.
Hill, 385 U.S. 374 (1967), and intentional
infliction of emotional distress cases, see,
e.g., Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988). Its application seems
not to hinge on the “defamatory” nature
of the speech as much as the nature of
the statement as being a false assertion
or with a false implication. Interestingly,
the standard was not used or applied in
United States v. Alvarez, 132 S. Ct. 2537
(2012) (finding unconstitutional a law that
banned false statements about military
awards). Instead, the justices considered “strict scrutiny” and “intermediate
scrutiny,” tests applied to laws generally
regulating speech, not exclusive to false
speech.
6. Aimee Edmondson, In Sullivan’s
Shadow: The Use and Abuse of Libel
Law Arising from the Civil Rights Movement, 1960–1989, 37 Journalism Hist.
27 (2011); Christopher W. Schmidt, New
York Times v. Sullivan and the Legal
Attack on the Civil Rights Movement, 66
Ala. L. Rev. 293 (2014).
7. 766 F.3d 774 (8th Cir. 2014).
8. Minn. Stat. § 211B.06, subd. 1. The
relevant part states: “A person is guilty of
a gross misdemeanor who intentionally
participates in the preparation, dissemination, or broadcast of paid political
advertising or campaign material . . . with
respect to the effect of a ballot question,
that is designed or tends to . . . promote or
defeat a ballot question, that is false, and
that the person knows is false or communicates to others with reckless disregard
of whether it is false.”
9. The court noted that there had been
some question about which standard of
review to apply because there was some
confusion in Alvarez, 132 S. Ct. 2537,
a case involving a federal statute that
prohibited false statements about military awards. In that case, a four-justice
plurality applied strict scrutiny and
found the law to be unconstitutional. Justice Breyer wrote a concurring opinion
in which he agreed the law was unconstitutional, but he applied intermediate
scrutiny. But the court distinguished Alvarez, because the law at issue in the instant
case involved political speech, which is
at the core of the First Amendment, and
Alvarez did not. See 281 Care Comm., 766
F.3d at 782–84 (discussing standard of
review under Alvarez).
10. 281 Care Comm., 766 F.3d at 787.
11. Id. at 788.
12. Id.
13. Id.
14. Id. at 789.
15. Id. at 790.
16. Id. In making its findings, the court
relied on an amicus brief filed by the Ohio
attorney general in Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334 (2014),
discussed infra notes 23–34 and accompanying text.
17. 281 Care Comm., 766 F.3d at 792.
Again, the court relied on assertions made
by the Ohio attorney general in Susan B.
Anthony List.
18. 281 Care Comm., 766 F.3d at 794.
19. Id. at 792.
20. “The burdens of the [administrative] 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 [administrative law judge] when the
complaint is filed close to the 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.” Id.
21. Id. at 793 (quoting United States v.
Alvarez, 132 S. Ct. 2537, 2550 (2012)).
22. Id. at 795 (citations omitted). Interestingly, the one case the court does not
cite or quote while pontificating on the
importance of robust debate on political issues is Sullivan. Indeed, the court
seems to go out of its way to avoid citing
it. The court directly refutes the suggestion that Sullivan is applicable to the case
in footnote 8, and then later, in stating
that “debate on public issues should be
Published in Communications Lawyer, Volume 31, Number 3, Summer 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
uninhibited, robust, and wide-open,” the
court cites to the section of McIntyre v.
Ohio Elections Commission, 514 U.S. 334,
346 (1995), that quotes Sullivan, rather
than citing to Sullivan itself. 281 Care
Comm., 766 F.3d at 785.
23. 45 F. Supp. 3d 765 (S.D. Ohio
2014). The case had previously been
appealed to the U.S. Supreme Court on
the issue of whether the plaintiff’s claims
were ripe. The Court found that they were
and remanded the case for consideration
of the First Amendment challenge to the
false statement law. Susan B. Anthony
List v. Driehaus, 134 S. Ct. 2334 (2014).
24. Ohio Rev. Code Ann. § 3517.21(B)
(10).
25. Susan B. Anthony List, 45 F. Supp.
3d at 771.
26. Id.
27. Id.
28. Id. at 772.
29. Id. at 773 (quoting United States v.
Alvarez, 132 S. Ct. 2537, 2550 (2012)).
30. Id. at 774.
31. Id. (quoting United States v. Stevens, 559 U.S. 460, 470 (2010)).
32. Id. (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 271 (1964)).
33. Id. at 775. The court may have been
trying to distinguish Sullivan, suggesting
that actual malice may be an acceptable
test in libel cases where the interests are
private, but not in political speech cases
such as the instant case. However, such a
distinction seems false in light of the fact
that many “libel” cases are about political
issues, as Sullivan itself was.
34. Id. at 778–79. Many of the same
arguments can be made in libel cases. It is
particularly ironic that libel cases brought
by judges—where the government is called
upon to protect the interests of other government officials—are often decided in
favor of the plaintiff. See, e.g., Sean Hill,
The Other Side of the Bench, News Media
& L., Summer 2007, at 29.
35. See Ashley Messenger, The Problem with New York Times Co. v. Sullivan:
An Argument for Moving from a “Falsity Model” of Libel Law to a “Speech
Act Model,” 11 First Amend. L. Rev.
172 (2012); Ashley Messenger, Reflections on New York Times Co. v Sullivan,
50 Years Later, 12 First Amend. L. Rev.
423 (2014).
36. Known as strategic lawsuits against
public participation (SLAPP), plaintiffs
have brought lawsuits to silence criticism
or intimidate opponents in a variety of
contexts, such as defamation claims, interference with contract or other business
torts, and environmental and development situations. See e.g., George W. Pring,
SLAPPs: Strategic Lawsuits against Public Participation, 7 Pace Envtl. L. Rev.
3 (1989). In Sierra Club v. Butz, a wellknown early example of a SLAPP suit,
when the Sierra Club sought an injunction
against logging a forest eligible for protection, the logging company counterclaimed
that the Sierra Club’s actions constituted
economic interference. 349 F. Supp. 934
(N.D. Cal. 1972) (granting Sierra Club’s
motion to dismiss relying on the petition
clause of the First Amendment).
37. Approximately 27 states along with
the District of Columbia and Guam have
passed anti-SLAPP legislation. See Kristen Rasmussen, Reporters Comm. for
Freedom of the Press, SLAPP Stick:
Fighting Frivolous Lawsuits against
Journalists (2011), available at http://
www.rcfp.org/rcfp/orders/docs/
ANTISLAPP.pdf.
38. In April 2015, the Court of Appeals
for the D.C. Circuit held that the D.C.
anti-SLAPP statute is preempted by Federal Rules of Civil Procedure 12 and 56
because it “answers the same question”
about the circumstances under which a
court must dismiss a case before trial. The
court found that the anti-SLAPP statute
conflicts with the federal rules because it
creates an additional hurdle for the plaintiff to get to trial (i.e., the plaintiff must
show likelihood of success on the merits).
Abbas v. Foreign Policy Grp., LLC, 783
F.3d 1328 (D.C. Cir. 2015). The D.C. Circuit was the first federal circuit court to
hold that an anti-SLAPP statute does not
apply in federal court. In June 2015, the
Seventh Circuit became the second. See
Intercon Solutions, Inc. v. Basel Action
Network, No. 13-3148, 2015 WL 3941463
(7th Cir. June 29, 2015) (affirming district court holding that Washington’s
anti-SLAPP statute could not be applied
in federal court). Every other circuit to
directly address this question—First,
Second, Fifth, and Ninth Circuits—has
held that state anti-SLAPP laws apply in
federal court. See Brief of Amici Curiae Media Organizations in Support of
Defendant-Appellees at 33–34, Abbas,
783 F.3d 1328 (No. 13-7171), 2014 WL
1319844.
Published in Communications Lawyer, Volume 31, Number 3, Summer 2015. © 2015 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.