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

 

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

And 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.