Constitutional law - in protecting one's right to speak, the First Amendment also protects one's right to lie - 281 Care Committee v. Arneson, 638 F.3d 621 (8th cir. 2011).

AuthorMcNeely, Jaclyn

The First Amendment to the United States Constitution prohibits the making of any law which "abridg[es] the freedom of speech." (1) While content-based speech regulations have been viewed as presumptively invalid, certain categories of content-based speech are deemed to fall outside the "freedom of speech" protections. (2) The categories that have been explicitly excluded are fighting words, obscenity, defamation, fraud, child pornography, and speech integral to criminal conduct. (3) In 281 Care Committee v. Arneson, (4) the Eighth Circuit considered whether a state may enact a statute restricting knowingly or recklessly false campaign speech, without demonstrating the First Amendment protections' requirement that the enacted statute be narrowly tailored to a compelling state interest. (5) The court held that knowingly false campaign speech falls within the protections of the First Amendment right to free speech, and, therefore, any such statute regulating it must withstand the test of strict scrutiny. (6)

The suit at issue arose from three Minnesota-based grass-roots-advocacy organizations that were founded to oppose school-funding ballot initiatives. (7) These organizations and their respective leaders claimed that a provision of the Minnesota Fair Campaign Practices Act ("FCPA") inhibits their ability to protest freely against such ballot initiatives, thereby violating the First Amendment. (8) The FCPA provides, in relevant part:

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) Although Minnesota criminalized defamatory campaign speech in 1893, its regulation of knowingly false campaign speech is fairly recent. (10) Whereas between 1988 and 2004 the only enforcement mechanism for this law was criminal prosecution, it now provides that violations of section 211B.06 will first be remedied through civil complaints. (11) This revised version allows any person, organization, or agency to file a complaint with the Office of Administrative Hearings ("OAH"), and then county attorneys are given discretion to decide if the situation warrants criminal charges in addition to the civil proceeding. (12)

In 2007, 281 Care Committee and its leader, Ron Stoffel, opposed a Robbinsdale Public School District's ballot initiative. (13) After the initiative was rejected, the superintendent of the school district informed the media that officials were investigating 281 Care Committee about the "false" information it spread during its opposition. (14) Following these allegations, plaintiffs filed suit in federal district court, claiming that section 211B.06 violates the First Amendment. (15) The plaintiffs moved for summary judgment, while the defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. (16) The district court granted the defendants' motion to dismiss, holding that the plaintiffs lacked standing and ripeness, while also noting that it would have alternatively dismissed for failure to state a claim. (17) The Eighth Circuit reversed, holding that the district court erred in dismissing the complaint for lack of subject matter jurisdiction and, therefore, that it also erred in upholding section 211B.06 without conducting a strict-scrutiny analysis. (18)

Generally, content-based speech restrictions must meet the test of strict scrutiny; however, certain classes of speech are exempt from this rule because their prevention and punishment have never been considered as raising constitutional issues. (19) These categories include fighting words, obscenity, defamation, fraud, child pornography, and speech integral to criminal conduct. (20) Historically, courts have disagreed on the issue of whether knowingly false speech is considered to be one of these types of speech that is categorically exempt from First Amendment protection. (21) In Garrison v. Louisiana (22) the United States Supreme Court explained that knowingly false speech is valueless and, thus, a type of speech that is categorically exempt from First Amendment protection. (23) However, Garrison concerned defamatory speech, which is already exempt from protection. (24) In United States v. Alvarez (25) the Ninth Circuit disagreed with Garrison, holding that decisions that declare knowingly false speech as "valueless" do not answer the question of whether it is categorically exempt from First Amendment protection. (26)

Although the defendants in the present case interpreted the categorical exemption of defamatory speech as an exemption of all knowingly false speech, the two are distinguishable. (27) Namely, defamation involves important private interests that political speech does not. (28) Noting this important distinction, the Ninth Circuit explained its reluctance to extend defamatory statements into a new context in order to create another exception to the First Amendment protections. (29) Another concern is that ballot initiatives are considered to be prototypical political speech, which is one of the primary matters the First Amendment protects. (30) Thus, courts must take into account that the First Amendment serves to "constrai[n] the collective authority of temporary political majorities to exercise their power by determining for everyone what is true and false, as well as what is right and wrong." (31)

Despite these distinctions and concerns, in his dissenting opinion of Alvarez, Judge Bybee emphasized the explicit words of the Supreme Court that false statements of fact "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (32) Judge Bybee combines this quote with two others from the Supreme Court to support his argument that false statements of fact should not be given First Amendment protection: that "the erroneous statement of fact is not worthy of constitutional protection," and that "both inside and outside of the defamation context ... false statements of fact are valueless and generally not within the protection of the First Amendment." (33) Therefore, contrary to the holdings of the Eighth and Ninth Circuits, Judge Bybee interprets the general rule as "false statements of fact are not protected by the First Amendment," excepting those situations where protecting a false statement is necessary to "protect speech that matters." (34) While the Eighth and Ninth Circuits have expressed their opinion that knowingly false speech is not categorically exempt from First Amendment protections, not all prior decisions and courts agree with this line of reasoning. (35)

In 281 Care Committee v. Arneson (36) the United States Court of Appeals for the Eighth Circuit considered the fundamental question of whether a state may enact a statute that restricts knowingly or recklessly false political speech...

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