The Honorable Ed Chau
The Honorable Kevin Kiley

RE: Constitutional and Practical Issues with Assembly Bill 1104

Dear Chair Chau, Vice Chair Kiley, and Members of the Assembly Privacy and Consumer Protection Committee:

On behalf of the Center for Competitive Politics (“the Center”),[1] I respectfully submit the following comments on constitutional and practical issues with Assembly Bill 1104,[2] which is scheduled for a hearing before the Assembly Privacy and Consumer Protection Committee on March 28, 2017. Among other things, this legislation amends California’s Elections Code to prohibit knowing and willful false or deceptive statements to be made on the internet about a candidate or a ballot issue. This dangerous standard would place powerful government bureaucrats in the precarious position of determining the truth or falsity of statements and thoughts about political issues, which by their very nature implicate strong differences of opinion. Worse still, as a result of Supreme Court precedent, this bill is very likely unconstitutional.

If legislation that is in any way similar to Assembly Bill 1104 becomes law, that statute faces a high likelihood of being found unconstitutional in court. Any potential legal action will cost the state a great deal of time and resources to defend, and will divert your Attorney General’s office from meritorious legal work. Furthermore, under the federal Civil Rights Act, Article III courts are empowered to order states to pay costs and damages to successful plaintiffs. The Center has received such judgments, including twice in the past year.

If passed and signed into law, A.B. 1104 will enable partisan enforcement of a law that tasks government officials with an impossible mandate – determining the truth or falsity of speech on the internet. Such a regulatory apparatus will inevitably hurt “the little guy” who decides to express his political opinions online and via social media accounts, potentially in violation of this measure. The remedy to any perceived issues with false statements made on the internet is more speech – not identifying and censoring speech deemed to be “false or deceptive” by powerful regulators. Lastly, libel and defamation laws already exist to protect candidates from false speech in those serious instances in which such speech crosses the proverbial line.

For more information on false statement law statutes, their dubious constitutionality, and the numerous practical and policy issues they pose, please consult the Center for Competitive Politics’ Issue Review, “State False Statement Laws: Should the Government Act as the Truth Police?”[3] I have enclosed a copy of the Center’s report with this analysis.

I. The First Amendment bars efforts to restrict speech on the basis of content, subject, or message.

“[A]s a general matter, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[4] This includes, except in cases of outright libel or perjury, the regulation of knowingly false statements. In United States v. Alvarez, the Supreme Court struck down the Stolen Valor Act, which criminalized false claims about winning significant military decoration. That law attempted to preserve the honor of our Nation’s highest awards, but even in that context was found to impermissibly burden speech protected by the First Amendment.

A.B. 1104, meanwhile, seeks to regulate political speech, not merely speech about military decorations, and “there is practically universal agreement that a major purpose of…[the First] Amendment was to protect the free discussion of governmental affairs.”[5] Accordingly, the courts have long held that the best solution to “false or deceptive” social media postings is for others to enter the debate and counter with the truth. Or, as Justice Oliver Wendell Holmes properly stated nearly a century ago, “the best test of truth is the power of the thought to get itself accepted in the competition of the market…That at any rate is the theory of our Constitution.”[6]

II. The enforcement of a provision prohibiting “false or deceptive statements” online will inevitably be exploited by those motivated by partisan purposes.

False statement laws grant government regulators extraordinary power to determine the “truth” of political speech and to impose hefty fines – or imprisonment – upon those found to be in violation of these statutes. Ostensibly written to prevent the proliferation of mistruths during a political campaign, false statement laws have the direct effect of stifling speech, and are particularly susceptible to abuse by candidates seeking to silence their critics.

Consider the facts of the Supreme Court case SBA List v. Dreihaus.[7] The plaintiff, Susan B. Anthony (or “SBA”) List, is a pro-life organization. During the 2010 election cycle, after then-Congressman Steven Driehaus voted in favor of the Patient Protection and Affordable Care Act, SBA List announced it would run an advertising campaign informing voters that Congressman Driehaus voted to publicly fund abortions. The veracity of this statement – like many assertions about intricate legislation and hot-button political issues – is a complex matter about which there is a measure of dispute. What is not arguable is that some consider the statement to be objectively true.[8]

Rather than accepting that tough ads are an assumed risk of participating in politics, or attempting to counter SBA List’s view of how the Affordable Care Act works, former Congressman Driehaus sought to silence SBA List. He threatened legal action not just against SBA List, but also against a private billboard owner willing to rent space to display SBA List’s message, and filed a complaint under Ohio’s false statement law.

Significantly, Congressman Driehaus withdrew his complaint before a final ruling was issued under the Ohio law. The reason for this was two-fold. First, the complaint itself was sufficient to cast doubt on the organization criticizing the congressman – the court of public opinion acts far more quickly than the regulatory agencies that enforce false statement law provisions. Second, by withdrawing the complaint, Congressman Driehaus effectively stopped SBA List from defending itself against the false statement charge. The Sixth Circuit Court of Appeals ruled that SBA List couldn’t even challenge the law, because, by that point in time, Congressman Driehaus had withdrawn his complaint.

The net result of Ohio’s false statement law in this case was nothing more than a political attack on an opponent. No false or misleading statements were exposed or punished, and voters were deprived of a full and fair political debate.

Given the proliferation of political speech by citizens on the internet about every issue imaginable, California is likely to see similar legal exploits, through which powerful individuals will tie up administrative agencies and the courts in seeking to silence the speech of those with which they disagree. Short of any politically-motivated complaints, merely attempting to enforce this provision will become a nearly impossible endeavor, as regulators will be forced to evaluate and decide a given statement’s veracity, often in the context of political disagreement, technical disagreements, and uncertain prognostication. Each question will likely pit regulators with competing worldviews against each other in deciding whether a particular statement is true or false. And the danger of selective enforcement will be ever-present.

III. False statement provisions, like the one at issue in A.B. 1104, will inevitably silence the speech of citizens lacking substantial resources, particularly those innocently expressing their opinions on the internet.

While Susan B. Anthony List eventually had their day in the Supreme Court, the process took significant time and money that would not be available to most of the 39 million Californians who use the internet and social media accounts daily as a tool for sharing their political opinions. In the SBA List case, for instance, another group also wanted to run ads critical of Congressman Dreihaus, but “it was afraid that doing so would expose it to enforcement actions and potential criminal penalties.”[9] Ohio’s false statement law, in this instance, effectively silenced not only the supposedly offending “false speech,” but also speech from a small organization without the resources to defend itself in front of regulatory bodies and courts – regardless of whether its planned speech was false.

Since A.B. 1104 specifically targets false internet communications, it is even more likely to implicate innocent Californians. The democratizing effect of the internet is well-known, and has applied to speech about political issues as well. No longer is effective political speech the sole purview of candidates and well-funded organizations; the internet has enabled anyone with a computer or smartphone to register their opinions on political debates. By specifically targeting these speakers with threats of fines, or even jail time, for speech as broad as a “deceptive statement designed to influence the vote,”[10] A.B. 1104 effectively undoes this process. If A.B. 1104 were to pass, the state would be in the position of policing every blog, Facebook post, and tweet to determine whether such comments mislead or are false about a candidate or ballot question. Further, because the law could be targeted at publishers, no website could reasonably be expected to host a free and open debate without fear of running afoul of the law.

This measure would do untold harm, not just to political debates in California, but also to the wider cultural sphere. If A.B. 1104 was enacted and enforced, every Californian would be forced to think about government repercussions before posting any message that might be construed as even vaguely political. Beyond the constitutional implications, California would essentially end the free and open internet.

IV. The remedy for false or misleading speech is more speech.

If candidates, political parties, or other organizations find false or misleading messages to be a problem, the alternative is not censorship, but more speech. The Supreme Court has consistently adopted this position. “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth…. The theory of our Constitution is that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[11]

And those supposedly “protected” from false speech under A.B. 1104 are uniquely suited to answer false speech directly. As the online blog techdirt recently wrote:

It would seem the “victims” listed in the proposed amendment aren’t really in need of a free speech-abusing law. If California’s government doesn’t like the tone of online posts about ballot measures, it has plenty of opportunities (and numerous platforms) to set the record straight. Worse, it gives the government the power to shut down speech it doesn’t agree with under the pretense [of] preventing voters from being misled.

As for political candidates, they rarely suffer the problem of having too little speech. Bullsh–t can be countered with more speech, a rhetorical weapon everyone has access to, but political candidates in particular tend to be especially well-equipped in this department.[12]

The state is not, and cannot be, the arbiter of truth. If candidates don’t like Californians’ opinions on the political issues of the day, the remedy is not more regulation, it’s more speech.

V. Existing libel and slander laws are sufficient to protect candidates from genuine unfair harm.

Outside of the obvious remedy to speech one disagrees with or finds “false or deceptive,” candidates may find solace in existing libel and slander laws. These statutes already provide ample protection against false speech that causes real damage. When applied properly, these provisions succeed in compensating the victims of defamatory or libelous speech, frequently resulting in favorable settlement or the payment of damages. For example, since Nevada’s false statement law was deemed unconstitutional in Nevada Press Association v. Nevada Commission on Ethics,[13] candidates in the state have turned to existing libel and slander laws to gain compensation for damaging speech.

While libel or defamation cases are rare, such cases have been successful across the country when speech against a candidate proved genuinely harmful. Again, using Nevada as an example, a candidate won a $250,000 settlement in 2007 from a union that sent out a mailer depicting her behind bars.[14] In 2012, an Iowa jury awarded a candidate for state senate $231,000 after being defamed by the opposing political party.[15] In Washington State, a defamation case stemming from statements made in a 2014 campaign is currently progressing through the courts.[16]

While the preferred avenue for answering political commentary or misleading speech in campaigns is more speech, in extreme circumstances, candidates are entitled to use existing libel and slander laws to seek protection and damages from the courts.

*          *          *

Thank you for the opportunity to provide these comments on Assembly Bill 1104. Should you have any further questions regarding this legislation, please do not hesitate to contact me at (703) 894-6835 or by e-mail at mnese@campaignfreedom.org.

Respectfully,

Matt Nese
Director of External Relations
Center for Competitive Politics

https://www.ifs.org/wp-content/uploads/2017/04/2017-03-27_Assembly-PCP-Committee-Comments-And-Report_CA_AB-1104_Online-False-Statement-Laws.pdf

[1] The Center for Competitive Politics is a nonpartisan, nonprofit § 501(c)(3) organization that promotes and protects the First Amendment political rights of speech, assembly, and petition. It was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. In addition to scholarly and educational work, the Center is actively involved in targeted litigation against unconstitutional laws at both the state and federal levels. Just this past year, we secured judgments in federal court striking down laws in the states of Colorado and Utah on First Amendment grounds. We are also currently involved in litigation against California, Missouri, and the federal government.

[2] The California Political Cyberfraud Abatement Act, A.B. 1104, California Legislature – 2017-2018 Regular Session (as introduced) (“A.B. 1104”).

[3] Matt Nese and Brennan Mancil, “State False Statement Laws: Should the Government Act as the Truth Police?,” Center for Competitive Politics. Retrieved on March 24, 2017. Available at:  https://www.ifs.org/wp-content/uploads/2014/07/2014-07-17_Issue-Review_Mancil_State-False-Statement-Laws.pdf (July 17, 2014).

[4] United States v. Alvarez, 132 S. Ct 2537, 2543-2544 (2013) (plurality op.).

[5] Buckley v. Valeo, 424 U.S. 1, 14 (1976) (citation and internal quotation marks omitted).

[6] Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

[7] 134 S. Ct. 2334 (2014).

[8] Richard M. Doerflinger, “A Careful Reading: Could federal health care money be used for abortion?,” America:  The Jesuit Review of Faith & Culture. Retrieved on March 24, 2017. Available at:  http://www.americamagazine.org/issue/careful-reading (March 26, 2014).

[9] Br. for Pet’rs at 7, Susan B. Anthony List, 134 S. Ct. 2334 (2014). Available at:  http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-193_pet.authcheckdam.pdf.

[10] A.B. 1104, § 2.

[11] United States v. Alvarez, 567 U.S. __, 132 S. Ct. 2537, 2550 (2012).

[12] Tim Cushing, “California Lawmakers Looking To Make Bad Law Worse By Banning ‘False’ Political Speech,” techdirt. Retrieved on March 24, 2017. Available at:  https://www.techdirt.com/articles/20170317/17054236942/california-lawmakers-looking-to-make-bad-law-worse-banning-false-political-speech.shtml (March 20, 2017).

[13] Nev. Press Ass’n v. Nev. Comm’n on Ethics, 2005 U.S. Dist. LEXIS 4923 (D. Nev. Mar. 26, 2005). The case began with original proceedings on Sept. 12, 2002, and was decided on March 26, 2005.

[14] Steve Sebelius, “System works when it comes to negative campaigns,” Las Vegas Review-Journal. Retrieved on March 24, 2017. Available at:  http://www.reviewjournal.com/steve-sebelius/system-works-when-it-comes-negative-campaigns (April 20, 2012).

[15] Haley Behre, “Iowa state senator wins $231,000 in defamation suit over campaign ad,” Reporters Committee for Freedom of the Press. Retrieved on March 24, 2017. Available at:  https://www.rcfp.org/browse-media-law-resources/news/iowa-state-senator-wins-231000-defamation-suit-over-campaign-ad (April 11, 2012).

[16] Ed Friedrich, Judge allows defeated candidate’s libel suit to continue,” Kitsap Sun. Retrieved on March 24, 2017. Available at:  http://www.kitsapsun.com/story/news/local/communities/south-kitsap/2016/08/05/judge-allows-defeated-candidates-libel-suit-to-continue/94329760/ (August 5, 2016).