The Michigan Attorney General’s office apparently posted this letter on the Big League Politics website:
(Jim Hoft (Gateway Pundit) wrote about it yesterday, and I’ve just confirmed the authenticity of the letter with the AG’s Office of Public Information.)
I cannot speak of the factual accuracy of the claims in the #DetroitLeaks video or in the AG’s response. However, for the purposes of our discussion, let’s assume the #DetroitLeaks claims are false. Can those who post the video actually be prosecuted for falsehoods (even if the government can show that the posters are knowledgeable or reckless)?
I do not believe that. I think under the First Amendment and under the leading precedent (US v. Alvarez (2012)) there is some leeway for laws prohibiting knowing falsehoods about how, where and when to vote. There the government would fear that the people would not be elected because they showed up at the wrong time or in the wrong place. Such restrictions would be narrow and would focus closely on protecting the mechanisms of the voting process.
I assume, however, that this is not Michigan AG’s concern here – rather, there must be a concern that people are being misled into overestimating the risk of electoral fraud (assuming these statements are actually false), and therefore either less so are interested in voting or will consider the election result to be inadmissible. And that seems to me to be a special case of the much broader concern about certain kinds of political lies: Lies about the government or its processes, the theory goes, will falsely undermine citizens’ trust in the government.
This is a factually entirely plausible concern. In fact, it’s an ancient concern that goes back at least to the time of its inception, particularly the debates over the Sedition Act of 1798 and similar language restrictions – laws that are generally prohibited (to quote the relevant part of the Sedition Act). ,
false, scandalous, and malicious writings, or writings against the United States Government or either the House of Congress … or the President … with the intent to defame [them] … Or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.
Supporters of the law stressed that the law (as opposed to English common law of seditious defamation) is limited to “false” and “malicious” statements; and they pointed out the importance of limiting these statements. Here is Justice Chase’s instruction to the jury in the US against Cooper, specifically on the Sedition Act:
When a man tries to destroy people’s trust in their officers, chief judge, and legislature, he is effectively destroying the very foundation of government.
And here’s one from Justice Iredell in the French fries case dealing with a treason resulting from the fries rebellion in Pennsylvania in 1799:
Freedom of the press is precious indeed – may it keep its shine for a long time! … [But] Can it be tolerated in any civilized society that someone is allowed with impunity to tell falsehoods to the people, with the express intention of deceiving them and causing them to become dissatisfied, if not rebellious, which is so easy to follow? … the need [of punishing libels against the government is even greater in a republic than in a monarchy]because in a republic more depends on the good opinion of the people to support it…. Take away the trust of the people in a republic and it will turn to dust.
The Michigan AG letter seems to me to be implicitly based on the same type of concern.
Again, these concerns are grave concerns raised by serious leaders during the framing era. But I think our legal system has rightly withdrawn from punishing such inflammatory slander, also because even direct lies (“false” and “malicious” statements) about the government have been criminalized
- unreasonable risk of suppressing or at least deterring even legitimate opinions,
- undue risk of suppressing allegations that would ultimately prove to be correct, and
- inappropriately risks selective enforcement by officials of that government.
For an example of these problems, see US v. Cooper himself; and the Supreme Court recognized this in 1964 and concluded that:
Although the Sedition Act was never examined in this court, the assault on its validity led the day before the court of history. Law enforcement fines were repaid by law of Congress on the grounds that it was unconstitutional. The invalidity of the law was also accepted by the judges of this court. These views reflect a broad consensus that the law was incompatible with the first amendment due to the reluctance it imposed on criticizing government and officials.
[Though false, malicious allegations against specific public officials may be punished,] “No court of last resort in this country has ever ruled, or even suggested, that prosecution for defamation of the government has a place in the American legal system.”
Nor does it matter which label government officials associate with it, whether it is “riot” or “seditious defamation” or “misleading and false election information”. I’m not sure if Michigan law actually purports to prohibit “misleading and false election information” outright. (No such law is cited in the AG’s letter, and my quick search didn’t find one.) But if there is such a Michigan ban, then I don’t consider it constitutional, at least when it comes to supposedly false and false laws Claims damaging public trust about the reliability of the electoral system.