TSEL Lawsuit Overturns Unconstitutional Criminal Law That Selectively Banned Criticism of Candidates


NASHVILLE — The Davidson County Chancery Court ruled today that a criminal state statute violated Tennesseans for Sensible Election Laws and other Tennesseans’ First Amendment right to knowingly falsely criticize candidates for state office.

The statute at issue, Tennessee Code Annotated § 2-19-142, made it a Class C misdemeanor to “publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to the candidate is false.”  In Tennessee, a Class C misdemeanor carries maximum penalties of a $50 fine, 30 days in jail, or both, for each violation.

TSEL designed direct mail pieces and digital advertisements about Tennessee House Representative Bruce Griffey, saying that he was “literally Hitler” for introducing legislation that would provide for the chemical castration of certain criminal defendants, and Tennessee House Representative Rick Staples, accusing him of spending campaign funds on everything from snorkeling trips to exotic açaì bowls.  TSEL knew these statements were false, but they did not send the mailers or run the digital ads for fear of prosecution.

So with the help of the Stanton Foundation First Amendment Clinic at Vanderbilt Law School, led by Professor Gautam S. Hans, TSEL sued the State of Tennessee to challenge the statute on First Amendment grounds.

Chancellor Ellen Hobbs Lyle awarded summary judgment to TSEL, declaring the law unconstitutional without a trial.

“This plainly unconstitutional law struck at the very purpose of the First Amendment’s Free Speech Clause,” said TSEL Executive Director and Treasurer George Scoville.  “The framers of our Constitution believed that robust public speech and debate would be essential to self-government.  This law tried to put its thumb on the scale, favoring the very people who enacted it–Tennessee state lawmakers–to the detriment of members of the voting public, who also have a reciprocal right to hear political communications and decide for themselves what matters in an election, including what is true or false.”

In her opinion, Chancellor Lyle adopted all of TSEL’s arguments on the merits of their constitutional challenge.

First, the statute unconstitutionally discriminated on the basis of the speaker’s viewpoint.  That is, it treated speakers who oppose a candidate differently than it treated speakers who support a candidate.

Similarly, the statute punished only false speech that criticized a candidate.  In other words, Tennesseans could lie all they wanted about a candidate as long as they were supporting him or her.

Third, no government is well enough equipped to distinguish truth from falsity.  As such, the Supreme Court has repeatedly recognized that a statement’s mere falsity does not deprive it of First Amendment protection.

Fourth, the statute prohibited far more speech than it could conceivably legitimately punish.

Finally, the statute also violated the Tennessee Constitution.

“Tennesseans have a constitutional right to mock and satirize politicians, and candidates for office cannot lawfully use the threat of a criminal prosecution to inhibit criticism,” said TSEL General Counsel Daniel Horwitz.  “Tennesseans For Sensible Election Laws is proud to have won this important case and made Tennessee’s democratic process freer once again.”

“A statute like this has grave implications for political discourse,” said TSEL Director of Strategy Fred Culver.  “When you think about sending campaign mail to hundreds or thousands of voters, or running an online ad campaign that could reach thousands more, the threat of fines and jail time for each utterance essentially freezes speakers like TSEL out of participating in the debate.  We are thankful for the free speech warriors who came before us that made it easy for Chancellor Lyle to knock this one out of the park.”

The State of Tennessee has not yet indicated whether it will appeal the Chancery Court’s ruling.  But for now, TSEL and all Tennesseans are free to criticize candidates for office, even if that criticism is knowingly false, when the candidates behave badly.  Join us!