By now, most people have either seen or heard about the young girl who broke down crying because she was so sick of hearing about the presidential election. Indeed, if we track social media responses we find that many adults agree with the youngster and they are sick of hearing from and about both President Obama and Mitt Romney. Many of these reactions are due to the negative and false statements that seem inherent in modern political campaigns.
There are organizations, the Center for Responsive Politics to name one, that try to keep politicians honest by fact checking statements and publicizing the results. It seems that the states have also developed a method—a legal method—to achieve the same end. The Wall Street Journal Blog today reports that several states have criminal laws that sanction false campaign speech—at least false speech waged at your opponent. Prosecutions are rare. Still, it does beg a free speech question. Last term in US v. Alvarez (No. 11-210) the Supreme Court determined that the Stolen Valor Act was unconstitutional. Essentially, lying about winning a military award, even if you do so to gain office, is protected speech.
Rick Hasen, the Wall Street Journal Blog reports, makes the argument that Alvarez likely voids state laws regarding false campaign speech. And I agree that it is likely that Alvarez along with the available more narrow remedies for libel and slander make the laws unconstitutional. But there is another precedent that also leads to the same result and certainly does so in conjunction with Alvarez. In Republican Party of Minnesota v. White (563 US 756 (2002)), the Supreme Court held that Minnesota’s “announce clause” was an unconstitutional burden on the speech and prohibited speech based upon its content. Minnesota tried to level the playing field for incumbent judges and their opposition. Since the judges were restricted in terms of discussing issues or announcing position due to the canon of judicial conduct, challengers would face the same restrictions. The state’s interest in impartiality was not sufficient to withstand strict scrutiny.
The false campaign speech laws are similar to the ‘announce clause’ from White. They criminalize speech based upon its content. In White, Scalia agreed with the Court of Appeals that the ban “burdens a category of speech that is “at the core of our First Amendment freedoms”—speech about the qualifications of candidates for public office.”
Combine the Republican Party of Minnesota v. White with US v. Alvarez and there seems to be a constitutional right to lie on the campaign trail about your own qualifications and your opponents. Perhaps we can blame the Supreme Court, at least partially, for Abigail’s tears and total toddler meltdown.
 http://blogs.wsj.com/law/2012/10/31/false-political-statements-often-illegal-but-rarely-punished/?mod=WSJBlog&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Feedfetcher last accessed on November 1, 2012.
 And this blogger is not going to belabor the obvious—that Citizens United and its progeny didn’t make Abigail’s life any better.