Campaign Fair Practice Laws (Is There a Right to Lie?)

Mark Listes and Wendy Underhill 10/29/2014

 

Campaign fair practice laws that regulate false statements intended to sway an election are on the books in 31 states.

States have taken two general approaches: 27 prohibit false statements in one way or another and seven provide campaign fair practice pledges. (Four states are on both lists.)

The Right to Free Speech and Regulating False Statements

image of a dice with yes/no/maybe on three sidesAnd yet, these laws may face constitutional challenges based on the right to free speech. Four recent cases address this issue.

In U.S. v. Alvarez (2012), the defendant pleaded guilty to falsely claiming that he had received the Medal of Honor but appealed on the basis that the federal Stolen Valor Act of 2005 itself was unconstitutional. The U.S. Supreme Court ruled that laws that restrict speech purely because the statements are false might be held unconstitutional. (The Stolen Valor Act was amended in 2013.)

In 2014, there have been two federal court cases that have directly addressed this issue. First, in Susan B. Anthony List v. Dreihaus, the constitutionality of Ohio’s prohibitions on false statements in campaigns (Ohio Rev. Code § 3517.21) was challenged.  The law makes it a misdemeanor to knowingly or recklessly make false statements about a candidate.  The U.S. District Court for the Southern District of Ohio, permanently enjoined (stopped) the enforcement of this statute. Then in 281 Care Committee v. Arnuson, a similar statute in Minnesota prohibiting false statements in elections was held unconstitutional.

Most recently, a petition for a writ of certiori ( a request to hear the case) was filed with the U.S. Supreme Court for a case called Clayton v. NISCA, which is a challenge to Minnesota's statute that bars false statements in campaigns. If granted, the U.S. Supreme Court will hear a case that directly addresses these statutes.

Prohibiting False Statements

Prohibiting false statements in some manner is on the books in 27 states. These typically make it a crime to knowingly or recklessly distribute false information about a candidate or an election. Some are based on claims of incumbency, statements about endorsements, providing voter information about where and when elections are held, and veteran status. The table below provides information and citations for these laws.

Laws Governing Making False Statements While Campaigning

 

Incumbency 1

Endorsements 2

Voter Information 3

Veteran Status 4

False Statements 5

Other Prohibition 6

Alabama

Alabama Code § 17-5-16

 

 

 

 

 

Identity

Arizona

ARS § 16-925

 

 

 

 

 

Identity

California

Cal. Elec. Code §20440; Cal. Elec. Code §18350-1

Yes

 

 

 

Yes

 

Colorado

CRS 1-13-109

 

 

 

 

Yes

 

Florida

Fla. Stat. § 104.2715

 

 

 

Yes

 

 

Hawaii

HRS § 19-3(12)

 

 

Yes

 

 

False statements about candidate withdrawal

Indiana

3-9-3-5

Yes

 

 

 

 

 

Kentucky

KRS § 121.99

 

 

 

 

Yes

 

Louisiana

LRSA § 18:1463

 

Yes

Yes

 

Yes

 

Massachusetts

MGL Ch. 56 § 41A-43

 

Yes

Yes

 

Yes

 

Michigan

MCL § 168.944

Yes

 

 

 

 

 

Minnesota

Minn. Stat. Ann § 211B 7

Yes

Yes

 

 

 

 

Mississippi

MCA §23-15-875

 

 

 

 

 

Statements about other candidates

Montana

Mont. Code Ann. § 13-35-402

 

 

 

 

 

Statements about other candidates

New Hampshire

NH Rev. Stat. Ann § 666.6

 

 

 

 

 

Identity

New Jersey

N.J. Rev. Stat. 19:36-66

 

 

 

 

 

Identity

North Carolina

N.C. Gen. Stat. § 163-274(7)

 

 

 

 

Yes

 

North Dakota

N.D. Century Code § 16.1-10-04

 

 

 

 

Yes

 

Ohio

Ohio Rev. Code § 3517.217 

Yes

Yes

Yes

Yes

Yes

 

Oregon

ORS § 260.532 and 260.55

Yes

 

 

 

Yes

 

Tennessee

Tenn. Code Ann. § 2-19-116 and § 2-19-142

 

Yes

 

 

Yes

 

Texas

Texas Election Code 255.004-5

Yes

 

 

 

 

Identity

Utah

Utah Code § 20A-11-1103

 

 

 

 

Yes

 

Virginia

Va. Code § 24.2-1005.1

 

 

Yes

 

 

 

Washington

42.17A.335

Yes

Yes

 

 

 

Statements about other candidates

West Virginia

W.Va. Code § 3-8-11(c)

 

 

 

 

Yes

 

Wisconsin

Wis. Stat. Ann. § 12-05

 

 

 

 

 

Statements about other candidates


1 “Incumbency” specifically addresses false statements about incumbency.
2 “Endorsements” specifically addresses false statements about endorsements.
3 “Voter Information” addresses false statements about elections and voting, such as where and when to vote.
4 “Veteran Status” addresses false statements about the candidate’s status as a veteran.
5 “False Statements” may address a variety of kinds of false statements.
6 “Other Prohibitions” include identity, such as communications that are made to appear as though they come from the government or claiming that something comes from the opposition’s candidate.
7 In Ohio and Minnesota, district court rulings have held these prohibitions to be unenforceable based on the right to free speech.

Campaign Fair Practice Pledges

Candidates in seven states may sign a pledge promising to conduct their campaigns in a fair and honest manner. After doing so, they can use this information in campaign materials.

Arkansas (Ark. Stat. Ann. § 7-6-102)—Mandatory; breaking the pledge is a misdemeanor.

California (Cal. Elec. Code §20440)—Voluntary.

Illinois (10 ILCS 5/29B-10)—Voluntary.

Maine (MRSA tit. 21-A, § 1101 et seq.)—Voluntary.

Minnesota (Minn. Stat. Ann § 211B)—Voluntary.

Nevada (Nev. Rev. Stat. § 294A.290)—Voluntary.

Texas (Texas Election Code 255.004-06)—Voluntary.

For More Information
Contact NCSL's elections team at 303-364-7700.