VP Candidate Tim Walz on "There's No Guarantee to Free Speech on Misinformation or Hate Speech, and Especially Around Our Democracy"

Robby Soave at Reason writes about this 2022 quote from Walz (MSNBC):

[MARIA TERESA KUMAR, MNSBC HOST]: … I want to talk about what you just mentioned about misinformation, because, oftentimes before, in previous political chapters, disinformation, telling people were to vote the wrong way, that was kind of—these were called—considered shenanigans.

But it’s becoming more ominous. Can you talk a little bit about that…

WALZ: Oh, yes.

KUMAR: … and what you will do to ensure that there are penalties for that?

WALZ: Yes.

Years ago, it was the little things, telling people to vote the day after the election. And we kind of brushed them off. Now we know it’s intimidation at the ballot box. It’s undermining the idea that mail-in ballots aren’t legal.

I think we need to push back on this. There’s no guarantee to free speech on misinformation or hate speech, and especially around our democracy. Tell the truth, where the voting places are, who can vote, who’s able to be there….

Two thoughts:

[1.] Walz was quite wrong in saying that “There’s no guarantee to free speech” as to “hate speech.” The Supreme Court has made clear that there is no “hate speech” exception to the First Amendment (and see here for more details). The First Amendment generally protects the views that the government would label “hateful” as much as it protects other views.

[2.] As to “misinformation,” the matter is much more complicated. Sometimes misinformation, especially deliberate misinformation, is constitutionally punishable: Consider libel, false state­ments to government investigators, fraudulent charitable fundraising, and more. (For more details on all these points, and citations, see When Are Lies Constitutionally Protected?.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan (1964), the Court held that even deliberate lies (said with “actual malice”) about the government are constitutionally protected. And in United States v. Alvarez (2012), five of the justices agreed that lies “about philosophy, religion, history, the social sciences, the arts, and the like” are generally protected.

The Supreme Court hasn’t explained where the line is drawn, and that leaves unclear where important areas of controversy should fall. As to punishing deliberate misinformation in an election campaign generally, some pre-Alvarez Some older cases that were decided before United States v. Alvarez, which cast doubt on government power to restrict lies, have upheld such election lie statutes. In re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985). But more recent decisions conclude that, on balance, allowing prosecutions for such lies is too dangerous. Grimmett v. Freeman, 59 F.4th 689, 694–96 (4th Cir. 2023); Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016); Commonwealth v. Lucas, 472 Mass. 387 (2015); 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014); State ex rel. Pub. Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998).

Walz, however, seems to be talking about a particular kind of election misinformation: Lies about the where, when, how, and who of voting. Some states already generally ban lies about such election mechanics. David S. Ardia & Evan Ringel’s First Amendment Limits on State Laws Targeting Election Misinformation summarizes this:

Thirteen states have statutes that prohibit false statements about voting requirements or procedures. Statutes within this category prohibit statements about what is required to vote or register, who can vote, when to vote, or how to vote…. California, Maryland, Minnesota, Oklahoma, Tennessee, and Virginia prohibit false information about voter registration or qualifications, targeting misrepresentations about a prospective voter’s eligibility to vote in an election. Hawaii, Minnesota, Tennessee, and Virginia prohibit false information regarding the time, place, or manner of an election…. Missouri, Montana, and New Mexico prohibit false information about voting instructions or election procedures, while Connecticut and Rhode Island prohibit false or misleading instructions regarding the use of voting machinery that would cause a voter to either lose or incorrectly register his or her vote. Connecticut also prohibits any misrepresentation of the eligibility requirements for voting by absentee ballot …. itself.

To quote an amicus brief that I signed in U.S. v. Mackey,

[S]tatutes that narrowly and clearly forbid “easily verifiable” false statements about objective facts—even those made in the political context—raise fewer First Amendment concerns because they are less likely to lead to arbitrary enforcement or curtail valuable speech. Alvarez, 567 U.S. at 732 (Breyer, J.). In Minnesota Voters Alliance v. Mansky, for example, the Supreme Court observed that it “d[id] not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.” 138 S. Ct. 1876, 1889 n.4 (2018). {This was said in a case involving restrictions on speech in a government-controlled nonpublic forum, but the Court did not expressly include any such limitation in that statement.}

And courts have upheld statutes regulating specifically defined knowing lies in elections, even after Alvarez. See Linert v. MacDonald, 901 N.W.2d 664, 667, 670 (Minn. Ct. App. 2017) (“knowingly mak[ing] … a false claim stating or implying that a candidate or ballot question has the support or endorsement of a major political party”); Schmitt v. McLaughlin, 275 N.W.2d 587, 590-91 (Minn. 1979) (falsely claiming support or endorsement by a political party); Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446, 447, 449 (Mich. Ct. App. 1986) (falsely claiming that one is the incumbent); see also Tomei v. Finley, 512 F. Supp. 695, 696, 698 (N.D. Ill. 1981) (misrepresenting party affiliation); Ohio Democratic Party v. Ohio Elections Comm’n, 2008 WL 3878364, at *5 (Ohio Ct. App. Aug. 21, 2008) (falsely claiming to hold a particular office).

These cases suggest that government restrictions on knowing lies concerning certain objectively verifiable matters, such as the time and place of an election, that are made to confuse voters, survive First Amendment scrutiny. Assuming someone is deceived, such falsehoods work a “legally cognizable” or “specific harm,” satisfying the Supreme Court’s concern that statutes criminalize more than simple false speech. See Alvarez, 567 U.S. at 719 (plurality op.); id. at 734 (Breyer, J.). Intentional lies about when polls close, where one can vote, whether one can vote online, and who is eligible to vote can generally be narrowly defined by statute and will often be “easily verifiable” for a court, mitigating concerns about vagueness and overbreadth, id. at 732 (Breyer, J.), and reducing the potential for “argu[ments] about interpretation or shades of meaning” to lead to selective prosecution, id. at 716 (plurality op.). Counterspeech is also less likely to be effective in the days immediately before an election, when election officials, candidates, and the media may not have time to rebut the lie. See Linert, 901 N.W.2d at 670. And the government’s interest in preventing fraud “carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 349 (1995); 281 Care Comm., 766 F.3d at 785-86 (the state “indisputably has a compelling interest in preserving the integrity of its election process”); Lucas, 34 N.E.3d at 1252 (similar).

So on the misinformation point, if limited to the context that Walz seemed to have been describing—in the Court’s words, “messages intended to mislead voters about voting requirements and procedures”—Walz may well be correct.

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