Tuesday, August 11, 2015
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/06/ban-on-knowing-lies-in-political-campaigns-violates-the-massachusetts-constitution/
http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11830.pdf
I read the case yesterday and was pleased by its reasoning. It relied, among others, on McIntyre, State v Dennis, and People v White, cases that upheld the right to anonymous speech.
Volokh and I have a long running dispute about whether lies are protected by the First Amendment.
I think they are, he disagrees and argues more persuasively than I do. Alvarez split the baby, holding that lies get intermediate scrutiny. Driehaus remanded back to a lower court or further findings.
This Mass. case uses strict scrutiny.
The statute was poorly written, and maybe a more narrowly tailored statute could have been upheld.
But I think the tide has turned and case that try to outlaw lies in politics are going to be struck down more often than they are upheld.
The case was based on a state constitutional text that says the right of free speech shall not be infringed. I wonder if the cases under this text shed any light on "infringed" as used in the second amendment.
http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11830.pdf
I read the case yesterday and was pleased by its reasoning. It relied, among others, on McIntyre, State v Dennis, and People v White, cases that upheld the right to anonymous speech.
Volokh and I have a long running dispute about whether lies are protected by the First Amendment.
I think they are, he disagrees and argues more persuasively than I do. Alvarez split the baby, holding that lies get intermediate scrutiny. Driehaus remanded back to a lower court or further findings.
This Mass. case uses strict scrutiny.
The statute was poorly written, and maybe a more narrowly tailored statute could have been upheld.
But I think the tide has turned and case that try to outlaw lies in politics are going to be struck down more often than they are upheld.
The case was based on a state constitutional text that says the right of free speech shall not be infringed. I wonder if the cases under this text shed any light on "infringed" as used in the second amendment.
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