Tag Archives | Politics

State Regulation of Election-Related Speech in the U.S.: An Overview and Comparative Analysis

I’m excited to announce that the UNC Center for Media Law and Policy, in partnership with the Center for Information, Technology, and Public Life (CITAP), just published a research report titled State Regulation of Election-Related Speech in the U.S.: An Overview and Comparative Analysis.

The report presents a comprehensive analysis of state efforts to regulate the content of election-related speech and is part of an ongoing multi-method research project focused on how platforms and digital media are changing electoral politics. It extends and builds on a report the Center published with CITAP in September 2020, Regulating the Political Wild West: State Efforts to Disclose Sources of Online Political Advertising, that examined disclosure and recordkeeping regulations for online political advertising.

You might be thinking, given the extent of misinformation associated with the last election, that there are no laws against lying in politics. It turns out that the opposite is true. Although the federal government has largely stayed out of regulating the content of election-related speech, the states have been surprisingly active in passing laws that prohibit false statements associated with elections. By our count, forty-eight states and the District of Columbia have such laws!

For this report, we reviewed more than 125 state statutes that regulate the content of election-related speech. These laws take one of two basic forms: statutes that directly target the content of election-related speech, and generally applicable statutes that indirectly implicate election-related speech by prohibiting intimidation or fraud associated with an election.

What we found is that these election-speech statutes deviate significantly from longstanding theories of liability for false speech. First, the statutes cover a broader range of speech than has traditionally been subject to government restriction: the statutes cover everything from merely derogatory statements about candidates (defamation requires false statements that create a degree of moral opprobrium) to false information about ballot measures, voting procedures, and incumbency. Second, a substantial number of the statutes impose liability regardless of whether the speaker knew the information was false or acted negligently.

Obviously, many of the statutes could be subject to significant First Amendment challenges.  For purposes of this report, however, we have not made any assessment as to whether specific statutes are constitutional. We’ll be doing that examination in a later phase of this project.

To aid in the analysis and comparison of the statutes, we created a multi-level taxonomy of the types of speech the statutes target and cataloged which states have statutes that fall within each category. In the appendix, we provide a summary for each state that outlines the relevant statutory provisions and provides a brief description of the restrictions the statutes impose as well as the types of speakers to which they apply.

Political speech has long been viewed as residing at the core of the First Amendment’s protections for speech. Yet it has become increasingly clear that lies and other forms of misinformation associated with elections are corrosive to democracy. Regardless of whether individual statutes survive First Amendment scrutiny, it is useful to examine the breadth and depth of state efforts to deal with lies, misinformation, intimidation, and fraud in elections. The surprising number of statutes already on the books clearly demonstrate that state legislatures see a problem that needs to be addressed. Moreover, apart from government efforts to impose civil and criminal liability for election-related speech, these statutes (and the taxonomy we describe in this report) can be useful to social media platforms and other intermediaries that facilitate election-related speech. If nothing else, the statutes provide a partial roadmap for identifying the types of speech – and election harms – that may warrant intervention.

The report and associated research is now up on the CITAP Digital Politics site, which includes pages for every state that outlines the relevant statutory provisions and provides a brief description of the restrictions the statutes impose as well as the types of speakers to which they apply (you can also download the report itself from SSRN).


Call for Papers: The Evolving Role of the Internet in Politics and Political Campaigns

As the incoming treasurer for the Association of American Law Schools’ Section on Mass Communications, I’m excited to announce that we’ll be hosting a joint program with the Internet and Computer Law section at our annual meeting in New Orleans.  Here is the announcement with a call for papers:

The AALS Section on Internet and Computer Law and the Section on Mass Communications are hosting a joint program entitled “The Evolving Role of the Internet in Politics and Political Campaigns” at the AALS Annual Meeting to be held in New Orleans, LA from January 4-7, 2013.  Both sections invite submissions of papers on the program’s topic; one paper will be selected for presentation at the conference.

As the Supreme Court recognized in ACLU v. Reno, “the Internet is ‘a unique and wholly new medium of worldwide human communication.'” Among its unique features is that the Internet democratizes the opportunity to engage in political speech by offering ready access to any speaker with an Internet connection to large potential audiences at the local, state, national or global levels.  This program assesses the impact the Internet has had to date on the relationship between the media and public officials or political candidates.  Traditional newspapers are struggling to find a sustainable business model and appear to be losing some influence over the policy agenda or public officials’ conduct.  Internet-only publications and other forms of political speech on the Internet have a complicated relationship with traditional media organizations, which, of course, also rely on the Internet to interact with their audiences.  To what extent are these changes fostering or inhibiting democracy?  Is law reform necessary in response to these changes?

Abstracts for papers on any topic within this broad scope are welcome and should be submitted to Michael Carroll, mcarroll@wcl.american.edu, and Anuj Desai, acdesai@wisc.edu, by August 15, 2012.

I should also add that UNC’s very own Daniel Kreiss will be on the panel, talking about his new book from Oxford University Press: “Taking Our Country Back: The Crafting of Networked Politics from Howard Dean to Barack Obama.”


Student Blogging for Law Conference

UNC School of Journalism and Mass Communication Ph.D. student Liz Woolery will participate in The Cleveland City Club’s 2011 Conference on Free Speech Oct. 11, 2011. The one-day conference brings together scholars, media practitioners and lawyers to discuss free speech issues facing the fields of politics and journalism. In advance of the event, Liz is blogging about free speech news and issues on the Club’s blog.


Money, Politics and the First Amendment: A Debate on Special Interest Advertising in Elections

The UNC Center for Media Law and Policy welcomed two of the nation’s pre-eminent electoral law experts – law professor Bradley A. Smith, former chair of the Federal Election Commission, and attorney Lawrence M. Nobel, who served as FEC general counsel from 1987-2000 – to debate campaign finance reform and government attempts to regulate political advertising funded by corporations and other private organizations. A dinner for guests and the speakers followed the lecture.
View this event on iTunes U: Part 1Part 2

Speakers: Bradley A. Smith, Professor, Capital University School of Law
Lawrence M. Noble, Attorney with Skadden, Arps, Slate, Meagher and Flom, LLP, in Washington, D.C.
Moderator: Professor William P. Marshall, UNC School of Law