Supreme Court ponders another politics and false statements case
One of the more interesting cases in the Supreme Court’s hands today is a controversy over a Minnesota law that makes it illegal to present a false endorsement of political candidates.
The nine Justices will meet behind closed doors in a private conference to consider more than a dozen petitions, including cases involving tour-guide tests, warrantless searches and the First Amendment’s establishment of religion clause.
But one case that could get a lot of attention, if it is accepted by the Court, is a basic First Amendment case about free speech and if someone can be punished by a state for implicitly saying a political party endorsed a candidate for office – when it never did.
The case is called Clayton v. Niska, from Minnesota, and it has spent several years in the appeals process.
The basic question is about a Minnesota state statute that bans false political speech under certain circumstances, and if the law is really protecting citizens by preventing “electoral confusion” caused by false candidate endorsements attributed to major political parties.
The Court is considering a petition from Bonn Clayton, who says Minnesota’s law, Statute Section 211B.02, isn’t specific, or narrowly tailored, enough to show a compelling interest more important than his free-speech rights.
Clayton is a long-time Republican Party member in Minnesota and he chaired a committee that coordinated state-wide events related to judicial districts and strategies. He also served on a committee that made judicial candidate endorsement recommendations to the party’s state convention.
In 2012, the Republican Party of Minnesota at first decided to endorse judicial candidates at its convention, but it reversed that decision after a disagreement over one contest, and it didn’t endorse any judicial candidates.
Clayton then set up a website that he promoted using e-mails, which appeared to endorse three judicial candidates by strongly recommending Republicans vote for them. The website said it was sponsored by the “Republican Party of Minnesota – Judicial District Chairs Committee.”
The Republican Party of Minnesota then sent its own e-mail out explaining that it wasn’t endorsing any judicial candidates in the election. After a second e-mail campaign from Clayton, the Republican Party’s attorney told Clayton to remove any reference to it from his website promotional content and the website.
Clayton modified some, but not, all of his promotional language, leading the state Republican Party to file a complaint under the name of Harry Niska, a state convention delegate.
Minnesota’s Office of Administrative Hearings accepted the complaint and assigned it to a three-judge panel, which ruled Clayton violated the state law by making a false claim of political support. The state office then issued a $600 fine.
In March 2014, Judge Kevin G. Ross at the Minnesota Court of Appeals upheld the lower court ruling about the law’s validity in punishing false claims of political support. Ross’ opinion was listed as unpublished, meaning it didn’t set a precedent.
Ross said the state law was constitutional because it “unambiguously seeks to protect the electorate from false statements of organizational and individual political endorsement.”
In Clayton’s appeal to the Supreme Court, his attorney argued that the Republican Party’s public efforts to dispute Clayton’s implied and indirect endorsements using “counterspeech” were enough to prevent “voter confusion.”
In turn, Clayton argued that the state government’s decision to seek a ruling on his conduct was tantamount to allowing state agencies to function as “ministries of truth” when it comes to political speech.
“No U.S. Supreme Court case has ever held that such a state interest is compelling to regulate political speech when counterspeech is available as an effective pre-election remedy,” says Erick Kaardal, his attorney.
Niska’s attorney said the lower courts were correct in deciding that the law is focused on a narrow instance where false claims are knowingly made about endorsements from a political party or other organization.
He also said the Republican Party’s counterspeech efforts weren’t effective since Clayton sent out other emails after the Party first said it didn’t endorse the candidates mentioned by Clayton on his website.
If Clayton v. Niska is accepted by the Supreme Court, the arguments would likely include references to two recent cases.
Last year, the Court ruled in Susan B. Anthony List v. Driehaus that an Ohio law that punished false statements made during political campaigns could be challenged.
And in United States v. Alvarez in 2012, the Supreme Court said that the Stolen Valor Act, which made it a crime to make false statement about having received military honors, violated the First Amendment. Both cases were referenced in the legal arguments about Clayton v. Niska.
Four of the nine Justices of the Supreme Court will need to vote to accept the Clayton v. Niska case, or the lower court rulings against Clayton will stand.
Scott Bomboy is the editor-in-chief of the National Constitution Center.
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