Fair campaign practice laws regulate false statements intended to sway an election. Thirty-four states, American Samoa and Guam have laws addressing such statements. Depending on the state, these prohibitions may apply to statements about candidates, ballot measures or the time, place and manner of elections. This table does not reflect laws that broadly prohibit voter intimidation or interference with a voter’s right to cast a ballot, though some states may interpret those laws to prohibit some false statements.
Court Cases: The Right to Free Speech and Regulating False Statements
State laws restricting campaign speech, even if that speech is false, may face constitutional challenges. The First Amendment to the U.S. Constitution protects the freedom of speech, and courts have found that some fair campaign practice laws infringe on this right. In a 2012 case, U.S. v. Alvarez, the U.S. Supreme Court held that laws that restrict speech purely because the speech is false may be unconstitutional. In that case, a man falsely claimed he received a Congressional Medal of Honor. The federal Stolen Valor Act prohibited his lies, but the Supreme Court found that the Act impermissibly infringed on the freedom of speech. The Stolen Valor Act has since been amended, but the court’s reasoning in U.S. v. Alvarez laid much of the groundwork for other cases focused on the intersection of lies and the First Amendment.
The following court cases have struck down state fair campaign practice laws. These laws are not included in the table below.
- In a 2014 case, Susan B. Anthony List v. Dreihaus, the U.S. Court of Appeals for the Sixth Circuit found that Ohio’s prohibitions on false statements in campaigns violated the First Amendment. Ohio’s law, located at Ohio Rev. Code § 3517.21, made it a misdemeanor to knowingly or recklessly make false statements about a candidate. The law also prohibited lies about incumbency, endorsement and misrepresentation of identity. In light of this case, the Ohio Elections Commission is prohibited from enforcing that law and has also ceased enforcing similar provisions for ballot measures, located at Ohio Rev. Code § 3517.22.
- In a 2015 case titled Commonwealth v. Lucas, the Massachusetts Supreme Court held that Massachusetts’s law prohibiting false statements about candidates and ballot measures was unconstitutional. The statute is located at Mass. Gen. Laws Ann. ch. 56, § 42.
- In Care Committee v. Arneson, another 2014 case, the U.S. Court of Appeals for the Eighth Circuit found that Minnesota’s fair campaign practices law was unconstitutional. The statute prohibited false statements about candidates or ballot measures. It is located at Minn. Stat. § 211B.06. Minnesota’s prohibitions on lying about incumbency and endorsements were not addressed in that case and remain on the books.
- In Rickert v. State in 2007, the Washington Supreme Court held that Washington’s prohibition on making false statements of material fact about candidates violated the First Amendment. The statute’s prohibitions on false statements about incumbency and endorsements remain good law.
Fair Campaign Practice Pledges
Candidates in nine states may sign a pledge promising to conduct their campaigns in a fair and honest manner. These pledges are optional in every state except Arkansas. A candidate who signs a pledge can use that information in their campaign materials.
- Arkansas (Ark. Stat. Ann. § 7-6-102)
- California (Cal. Election Code § 20440)
- Illinois (Ill. Rev. Stat. ch. 10, § 5/29B-10)
- Maine (Me. Rev. Stat. Ann. tit. 21-A, § 1101)
- Montana (Mont. Code Ann. § 13-35-302)
- Nevada (Nev. Rev. Stat. § 294A.290)
- Texas (Tex. Election Code Ann. § 258.001 et seq.)
- Utah (Utah Code Ann. § 20A-9-206)
- West Virginia (W. Va. Code § 3-1B-1 et seq.)
Prohibitions on False Statements
The table below indicates what types of false statements, if any, are prohibited by state law. Definitions of these statements, punishments for violating the law and other details of these prohibitions vary by state. The prohibitions reflected in the table below apply to false statements about:
- Candidates: State law prohibits making false statements about other candidates. This can include statements about their personal lives, their voting history and more.
- Incumbency: State law prohibits stating or indicating that a candidate is an incumbent if they are not actually an incumbent. This may include prohibitions on using language like “re-elect” on campaign materials for candidates who are not incumbents.
- Endorsements: State law prohibits stating or indicating a candidate is endorsed by someone who has not endorsed them. This may include endorsements from organizations, political parties and more.
- Voter Information: State law prohibits misleading voters. This may include disseminating false information about the time, place and manner of elections or telling a voter that filling out their ballot in a particular way will have the effect of voting for one candidate when it will actually have the effect of voting for another. This category does not include statutes that broadly prohibit intimidation of or interference with voters.
- Veteran Status: State law prohibits making false statements about whether a candidate is a veteran.
- Misrepresentation of Identity: State law prohibits pretending to be someone else. This may include issuing advertisements or mailers that appear to come from a different sender than they actually do or sending employees or volunteers into another candidate’s campaign under the guise of working for that candidate when they actually work for someone else.