An obscure procedural order issued the day after the Supreme Court’s decision to uphold President Barack Obama’s health care law got lost in the saturated media coverage of the health ruling and the palace intrigue over whether Chief Justice John Roberts switched his vote and alienated his conservative colleagues. Without comment or dissent, the justices declined to hear Minnesota’s appeal of a federal appeals court ruling in 281 Care Committee v. Arneson — holding that Minnesota’s law banning false campaign speech about ballot measures is likely unconstitutional under the First Amendment. The result could be even nastier campaigns and more political dirty tricks. Minnesota had asked the Supreme Court to hold its petition until the court decided United States v. Alvarez, the so-called “Stolen Valor” case. The court decided Alvarez the same day as health care, striking down as a free speech violation a federal law making it a crime to falsely claim to be a recipient of the Congressional Medal of Honor. Alvarez casts considerable doubt over when, if ever, states can take actions to combat false campaign statements and campaign dirty tricks — including lying about the location of a polling place or the voting date. The court could have used the 281 Care Committee case to clear up the muddle next term. But it just denied the petition. Without new clarity, I expect anyone charged with making election-related lies to raise a First Amendment defense. Which they just may win.
It’s too bad the Supreme Court didn’t take the 281 Care Committee case, because the current uncertainty over false campaign speech laws provides an opening for those who might using consider political dirty tricks in November. The government has a compelling interest in stopping that kind of voter suppression — even if we don’t trust it to police campaign statements. Before Alvarez, the Supreme Court had recognized certain categories of speech and expression, like “fighting words,” which were not entitled to any First Amendment protection. The U.S. government, defending the Stolen Valor law in Alvarez, relied on statements in earlier Supreme Court cases suggesting that deliberately false speech is similarly undeserving of First Amendment protection.