Keywords

Introductory Comments

In this chapter we survey the trials and experiments in truth in election advertising legislation that have taken place in other comparable settings in order to see what lessons might be taken from them. Analysis of legislation in other jurisdictions reveals the multiple challenges facing this type of legislation and is instructive for those considering a similar legal approach. The relevant cases are New Zealand, the United Kingdom, Canada and the United States.

Although s 113 of the Electoral Act 1985 (SA) is arguably the best-established example of TIPA legislation, there are cognate jurisdictions that have tested similar legislation with varying degrees of success. Throughout the deliberation and legislative process, the passage of such laws has often been welcomed with optimism, but they have invariably confronted problems of their compatibility with embedded political institutions and norms. For example, state legislation of this type in the United States has been consistently under-enforced and, when enforced, deemed unconstitutional by the Supreme Court as an infringement of the First Amendment.1 Variations in the constitutional law of jurisdictions foreign to Australia have led to electoral advertisements being regulated through oblique means. Consequently, in some cases differing conceptions of defamation law and advertising standards have been implemented to regulate false campaign statements. Some settings have considered a range of penalty provisions that could be usefully incorporated into Australian legislation. Others point to the importance of publicising the existence of TIPA-type laws.

New Zealand

The regulation of false campaign statements in New Zealand is managed by both regulatory and legislative power. The Advertising Standards Authority and Broadcasting Standards Authority regulate advertising complaints, with the latter handling all television and radio advertisements. Legislatively, since 2002, s 199A of the Electoral Act 1993 (NZ) has provided statutory support in the prevention of false campaign statements. The law currently reads:

  1. 1.

    A person is guilty of a corrupt practice if the person, with the intention of influencing the vote of an elector,—

    1. (a)

      first publishes or republishes a statement, during the specified period, that the person knows is false in a material particular or

    2. (b)

      arranges for the first publication or re-publication of a statement, during the specified period, that the person knows is false in material particular.

The term ‘specified period’ denotes the period:

  1. (a)

    beginning 2 days immediately before polling day and

  2. (b)

    ending with the close of the poll.

Section 199A was added to the Electoral Act 1993 (NZ) following the Parliamentary Justice and Electoral Committee inquiry into the 1999 election. Foreseeing the avalanche of false information that would descend in the digital age, the Committee found that, in the absence of such legislation ‘there is a real danger … that electors will base their electoral choices on erroneous information’. The Committee further noted the increasingly damaging effects of false statements as an election approaches, providing the backdrop for a unique feature of the legislation: the ‘3 day prior’ proviso. The Inquiry noted that ‘there is… a temptation for unscrupulous candidates to exploit the media and voters over the last few days of the campaign by issuing misleading statements’ (Justice and Electoral Committee, Parliament of New Zealand, 2001). The ‘3 day prior’ proviso is embodied in the proscription of false statements only in the ‘specified period’ demarcated above. As a corrupt practice, breach of s 199A is punishable by up to two years imprisonment and/or a fine of up to NZD40,000.

Prima facie, the law appears to provide effective deterrence against false campaign statements, but the electorate and political actors in New Zealand are either unaware of or unconcerned about its existence. Indeed, when interviewed, Tim Barnett, New Zealand Labour Party General Secretary between 2012 and 2015, indicated that he had forgotten s 199A existed (Renwick & Palese, 2019). Graeme Edgeler, a Wellington-based barrister said he ‘expected no one would ever be convicted under it’ (Renwick & Palese, 2019: 37) given the difficulty in reaching the falsity threshold. He also expressed the view that it represents an ‘inappropriate interference’ with New Zealand’s freedom of speech protections.2

To date, only one case has reached the courts under s 199A. This was Peters v Electoral Commission (‘Peters’) ([2016] 2 NZLR 690). Following the 2014 national election, Winston Peters, leader of the New Zealand First Party, alleged that opposing parties’ statements had falsely represented the statements and policy positions of the New Zealand First Party and its candidates. These statements had remained accessible (but were not initially published) to the public on the 18th and 19th of September, prior to the election on the 20th. Peters complained to the New Zealand Electoral Commission (‘NZEC’) which responded that the section had not been breached because, although the advertisements had been accessible during the ‘specified period’ (see s 199A above), they had not been first published in the period. Consequently, Peters sought judicial review.

The High Court of New Zealand granted the request and held the NZEC’s application to be ‘wrong in law’ (Peters: 691 (Mallon J)). The court’s interpretation of the Act thus encompassed any election material accessible during the ‘specified period’. In what might be interpreted as a backward step, the act was subsequently amended in accordance with the NZEC’s original interpretation, effectively watering it down, with s 199A(2) now reading:

Subsection (1) does not apply if—

  1. (a)

    the statement was first published before the specified period and remains available or accessible within all or part of the specified period; but

  2. (b)

    the person did not, during the specified period, by any means,—

    1. i.

      advertise or draw attention to the statement or

    2. ii.

      promote or encourage any person to access the statement.

New Zealand’s s 199A is rarely publicised and almost never invoked. Although the Act provides a strong basis in law against false statements and is attuned to the importance of compliance in the days approaching the election, the provision is generally considered inoperable and widely dismissed in its current form. A particular difficulty lies in the ‘3 day prior’ proviso which appears to be too narrow a window for action and could even be interpreted as tacit endorsement of false campaign statements made outside of the window. The wording of the legislation and subsequent onus on the prosecution, in theory, presents more difficulties to the successful operation of the law. Unlike the South Australian law, there is no ‘intermediate’ step, such as a request for a retraction, between the publishing of the statement and the offence. Moreover, the fault element of knowledge would be extremely difficult to prove beyond a reasonable doubt.

It is our view that any aspirational or ideal-type law against false campaign statements should embody provisions and sanctions that cover the entirety of the election campaign. Further, the existence of such laws should be properly publicised. New Zealand’s experience with the legislation, highlighted in Peters, underscores the importance of the political class and wider public being cognisant of such legislation and its practicalities and obligations.

United Kingdom

False campaign statements have been illegal since the 1895 amendment to the Corrupt and Illegal Practices Act 1883 (UK), although the relevant section is now contained in s 106 of the Representation of the People Act 1983 (UK). The provision in its current form reads:

  1. 1.

    A person who, or any director of any body of association corporate which—

    1. (a)

      Before or during an election,

    2. (b)

      For the purpose of affecting the return of any candidate at the election.

Makes or publishes any false statement of fact in relation to the candidate’s personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, that statement to be true.

An individual found to have breached the section commits an ‘illegal electoral practice’, punishable by a fine of up to GBP5000 (Representation of the People Act 1983 (UK) s 159). A breach may also bar an individual from standing for parliament or holding elected office for three years (Representation of the People Act 1983 (UK) ss 160, 173).

Apart from the potential sanction of disqualification, the other noteworthy feature of the British legislation is that it applies only to false personal statements about political candidates, rather than those of a political nature.3 In this sense, the legislation provides more of an electoral complement to existing defamation law than a guard against electoral corruption. Personal statements are understood in the case law to encompass those which relate to family, religion, sexual conduct and business or finances, although, in reality, the line between personal and political is often blurred. Furthermore, the ex-post remedies typically used for defamation such as an apology and damages would appear to be of little help to a disgruntled election candidate relative to the more dynamic measures contained in s 106. The legislation’s comparative effectiveness lies in the relative ease of obtaining an injunction compared to defamation law. A complainant can obtain an injunction where they can demonstrate ‘prima facie proof of the falsity of the statement’—a much lower threshold than that which applies in defamation law (Representation of the People Act 1983 (UK) s 106(3)).

Although charges were brought under the Act for statements made in a 2006 local government election (Tatchell, 2007), the sole parliamentary breach of s 106 of the 1983 Act concerns the 2010 election of Philip Woolas to the seat of Oldham East and Saddleworth in greater Manchester. Following Woolas’ marginal victory, his Liberal Democrat opponent Elwyn Watkins petitioned against the result under s 106 (See Watkins v Woolas (In the matter of the Representation of the People Act 1983) [2010] EWHC 2702 (QB)). Three items of election literature were found to have contained false statements, of which two were considered to be of a personal nature and therefore relevant to s 106. Notably, these statements were sufficient to render the election void and disqualify Woolas from standing for 3 years. On appeal, the Administrative Court leaned heavily on the reasoning of the 1895 parliament, particularly as it related to the decision to penalise only false personal, rather than political statements. The court opined that ‘[i]t was as self-evident in 1895 as it is today, given the practical experience of politics in a democracy, that unfounded allegations will be made about the political position of candidates in an election’. Further: ‘[T]he statutory language makes it clear that parliament plainly did not intend the 1895 Act to apply to such statements; it trusted the good sense of the electorate to discount them’ (R (on the application of Woolas) v The Parliamentary Election Court (‘Woolas’) [2010] EWHC (Admin) 3169, [110] (Thomas LJ for the Court)) (emphasis added). The court noted that personal statements were distinct from political statements, and ought to be punished accordingly as ‘the electorate would be unable to discern whether such statements which might be highly damaging were untrue’ (Woolas: [110]).

The court approved the narrow scope of statements caught by the provision, noting a possible ‘chilling’ effect if the scope were too wide. Should the provision be applied to political statements ‘[i]t would be difficult to see how the ordinary cut and thrust of political debate could properly be carried on’ (Woolas: [113]). The court concluded that the provision relating to false statements could ‘only enhance the standard of political debate and thus strengthen the way in which a democratic legislature is elected’ (Woolas: [124]).

A striking feature of the section is its capacity to cover non-damaging false statements of candidates. For instance, in 1997 a GBP250 fine was levied against a journalist who published false allegations of homosexuality against an election candidate (Lamont, 2001). While not strictly a defamatory statement, its potential to resonate with certain constituents’ religious and/or personal prejudices may have been of detriment to the candidate, although, obviously, the statement is as prosecutable as an accusation of heterosexuality against an openly homosexual candidate. Such personal accusations are comparatively difficult to debate in the public realm relative to political statements, and this proposition underpins the reasoning of s 106.

Much like the New Zealand legislation, the existence of s 106 is little known, and it is rarely invoked. During the 2010 general election, 37 cases were reported to police, of which 23 required no action, 9 required investigation, 4 resulted in informal police advice and 1 (Woolas) resulted in conviction (Rowbottom, 2012). While the Act could apply to any person, the UK Law Commission has noted that it is ‘plainly targeted at rival candidates and those affiliated to their campaign’ (Law Commission et al., 2014: 250). The scope of the legislation may need to be widened as the issue of agency and authorship is becoming increasingly opaque in the age of social media campaigning. The non-monetary disqualification penalty, the strict focus on ‘personal’ statements rather than those of a political nature, as well as the concentration on the behaviour of candidates rather than the public provide a strong disincentive against false personal statements. The provision complements defamation law, although is more applicable to the electoral context due to the ease of seeking an injunction. It is, however, still insufficient. The Act’s concern with personal statements reflects an awareness of the potential ‘chilling effect’ that constraints on political discourse may have—and which any legislation must carefully navigate—but is arguably too cautious.

Canada

Canadian electoral law has embodied provisions preventing the publication or making of false statements about candidates since 1908. Between 1908 and 1970, it was an offence for any person to ‘make or publish any false statement of fact before or during an election about the personal character or conduct of a candidate for the purpose of affecting the return of a candidate’. Then, from 1970 until 2000 it was an offence for anyone to ‘knowingly make or publish a false statement of fact about the personal character or conduct of a candidate before or during an election’ (see Canadian Constitution Foundation v Canada (Attorney-General) [2021] ONSC 1224, [11]–[18]) (emphasis added).

The Canada Elections Act (S.C. 2000, c. 9) was significantly overhauled in 2000, with s 91(1) of the English language version prohibiting the ‘making or publication of any false statement in relation to the personal character or conduct of a candidate or prospective candidate with the intention of affecting the results of an election’ (Canada Elections Act (S.C. 2000, c 9) s 91 as before 2001 overhaul). The English provision did not explicitly allude to any knowledge requirement like the offence as it stood between 1970 and 2000. However, the French language version of the offence contained the word ‘sciemment’, which translates as ‘knowingly’. The French language version therefore contrasted with the English language version in expressly stipulating a knowledge requirement for the offence. The linguistic discrepancy was resolved in 2001 with the addition of the word ‘knowingly’ to the English language version of s 91, which subsequently read:

No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate. (Canada Elections Act (S.C. 2000, c 9) s 91 as before 18 January 2019)

Section 91 was complemented by s 74 which forbade the publication of ‘false statement[s] of the withdrawal of a candidate’ as well as s 56 which relates to false publications or statements relating to false accusations of candidacy.

Much like the cognate laws in New Zealand and the United Kingdom, the law has sat largely dormant and was rarely publicised at election time. As such, while the specific provision existed as a de jure deterrent against false election statements, there are few examples of its application from 2001. In 2019, s 91 was amended by Bill C-76, known as the Elections Modernization Act (S.C. 2018, c 31), which had passed the year prior. The Bill was primarily concerned with data tampering and misuse, as well as campaign finance, both of which were, and remain, salient issues for electoral policymaking. However, the Bill also amended s 91 of the Canada Elections Act to read:

  1. 1.

    No person or entity shall, with the intention of affecting the results of an election, make or publish, during the election period,

    1. (a)

      a false statement that a candidate, a prospective candidate, the leader of a political party, or a public figure associated with a political party has committed an offence under an Act of Parliament or a regulation made under such an Act—or under such an Act of the legislature of a province or a regulation made under such an Act—or has been charged with or is under investigation for such an offence or

    2. (b)

      a false statement about the citizenship, place of birth, education, professional qualifications or membership in a group of association of a candidate, a prospective candidate, the leader of a political party or a public figure associated with a political party.

  2. 2.

    Subsection (1) applies regardless of the place where the election is held or the place where the false statement is made or published (Canada Elections Act (S.C. 2000, c.9) s 91 as at 19 January 2019) (titles omitted).

The amendments substantively modified the previous version of s 91 in five notable ways: it proscribed a list of false statements; prohibited an entity from making false statements; specifically confined the prohibition to the election period; extended the ban to leaders of political parties; and removed the ‘knowledge’ requirement for the falsity of the statement.

The passage of the Bill, specifically the modifications to s 91, was highly controversial. Almost immediately, the Canadian Constitutional Foundation (‘CCF’) launched a legal challenge regarding the compatibility of s 91 with s 2(b) of the Canadian Charter of Rights and Freedoms which explicitly upholds ‘freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication’ (Canada Act, 1982 (UK) c 11, sch B, Pt I, s 2(b) (‘Canadian Charter of Rights and Freedoms’)). According to the CCF, s 91 was an undue interference with this freedom and it characterised the provision as ‘ineffective and overly draconian’. The removal of ‘knowingly’ and the subsequent extension of liability to cases in which the actor was unaware of the falsity of their statement attracted criticism from some commentators who considered it too broad. As Evan Dyer noted: ‘[A] cursory search of Twitter quickly turns up countless examples of Canadians who have posted statements that appear to violate the law’ (Dyer, 2019).

Even before the 2019 amendment to the Act, parliamentary sentiment towards the provision was sceptical. In their 2017 review into possible legislative reforms after the 2015 election, the Standing Committee on Procedure and House Affairs (‘SCPHA’) recommended the repeal of s 91 for several reasons including enforcement difficulties and the difficulty of assessing the intent to affect the general election result or that of a specific candidate. It suggested that ‘serious cases of defamation or libel can be dealt with through alternative civil or criminal legal mechanisms’ (SCPHA, 2017: 8). Notably, the opposition party at the time agreed that the provision should be repealed in its entirety, claiming that ‘[i]t is [not] the place of government or executive branch agents to stand in judgement over the veracity of political speech outside or during an election period’ (SCPHA, 2017: 22).

The prevailing sentiment of the legislature was that the provision was both inoperable and undesirable and that one could have reasonably expected it to be repealed in the near future. As it happened, in March 2021, the Ontario Superior Court struck down s 91(1) following the CCF challenge. The section was found to be incompatible with freedom of expression as protected by s 2(b) of the Canadian Charter of Rights and Freedoms.

In her ruling Davies J conceded that the ‘distribution of false information during elections can threaten our democracy’, and that s 91(1) constituted part of ‘Canada’s overall response to the threat posed by misinformation and disinformation during elections’ (Canadian Constitution Foundation v Canada (Attorney-General) [2021] ONSC 1224, [2]–[3]). The removal of ‘knowingly’, however, implied that ‘the mens rea of the offence of contravening s 91(1) … [did] not include an element of knowledge that the statement in question is false’. Section 91 was therefore not a justifiable limitation on freedom of expression and could therefore not be saved under s 1 of the Canadian Charter of Rights and Freedoms which permits such limitations. Although the government requested the suspension of the declaration of invalidity, Davies J expressly dismissed the request. On 29 June 2021, Canada’s Bill C-30 amended ss 486(3)(c) and 486(4)(a) of the Canada Elections Act, modified the offence from ‘contraven[ing] subsection 91(1)’ to ‘knowingly contraven[ing] subsection 91(1)’ (Bill C-30, An Act to Implement certain provisions of the budget tabled in Parliament on 19 April 2021 and other measures, 2nd Session, 43rd Parliament, 2021). In this amendment, the government seemed to be attempting to re-establish the intent of the offence in order to, once again, render s 91(1) constitutional.

Despite the government’s attempt to ‘fix’ the provision, Yasmin Dawood of the University of Toronto has suggested that the offence may face additional constitutional hurdles from s 2(b) of the Charter (Dawood, 2020). Notwithstanding issues of intent, in R v Zundel ([1992] 2 SCR 731), the Supreme Court of Canada struck down a Criminal Code provision which prohibited the publication of false information or news and thereby affirmed that false speech is constitutionally protected under s 2(b) of the Canadian Charter of Rights and Freedoms. Given that s 91(1) aims explicitly to ban false election speech, it may be subject to further constitutional challenge. Canada’s s 91(1), while aspirational, seems to have had little impact on the Canadian electoral landscape. The provision attempts to prevent the publication of narrowly defined false statements about candidates, prospective candidates, and party leaders at election time—but there is little evidence that it has been successful in doing so.

The United States of America

The United States’ political tradition of individualised free speech and expression rights protection, as codified into its political landscape through the First Amendment of the US Constitution has meant that any attempt to regulate political speech and, by extension, election advertising, has encountered fierce cultural, legal and constitutional resistance. While the Supreme Court is yet to rule directly on false campaign speech, in Brown v Hartlage ((1982) 456 U.S. 45), the court found that when a state ‘seeks to restrict directly the offer of ideas by a candidate to the voters, the First Amendment … requires that the restriction be demonstrably supported by, not only a legitimate state interest, but a compelling one’ (Brown v Hartlage (1982) 456 U.S. 45, 54 (Brennan J)).

Multiple attempts at regulating political speech and advertising have been made in state jurisdictions, and although courts were initially divided over the constitutionality of such provisions, the seminal case of United States v Alvarez (‘Alvarez’) ((2012) 567 U.S. 709) in 2012 tipped the scales to the side of the First Amendment with long-term consequences for all such legislation.

Prior to Alvarez, a number of cases regarding TIPA laws had been decided in state courts. Examples of these include State v 119 Vote No! Committee ((1998) 135 Wn.2d 618) and Pestrak v Ohio Elections Commission ((1987) 670 F. Supp. 1368). Rick Hasen has noted that in these cases, judges had tended to agree that: any TIPA law must target statements made with ‘actual malice’4; be decided under a higher evidentiary standard; and not impose prior restraint on the publication of political matters (Hasen, 2013). Beyond this, however, there was no consensus on whether false speech was generally entitled to any protection under the First Amendment. Alvarez, however, had important implications for the protection of false speech.

In Alvarez, the US Supreme Court struck down the Stolen Valour Act of, 2005 (Pub L 109–437, 120 Stat 3266–3267) as unconstitutional in a 6–3 decision. Although this case did not directly relate to false election speech it was nevertheless significant for it. Some explanation of the case follows: Xavier Alvarez was indicted in 2010 by the US District Court for the Central District of California for false statements made in 2007 about his claimed receipt of the Congressional Medal of Honor in 1987. Such statements were forbidden by the Stolen Valour Act of, 2005, which proscribed many forms of false representation of military medals or honours. The court rejected Alvarez’ claim that the law was unconstitutional, although the decision was then reversed by a panel of judges of the United States Court of Appeals of the Ninth Circuit, which held the law invalid. The appellate court’s decision was challenged by the government in 2012, and the case was subsequently heard by the Supreme Court in 2012.

Justice Kennedy, in the majority decision, opined that the ‘Government has not demonstrated false statements generally should constitute a new category of unprotected speech’ and therefore the ‘reach of the statute puts it in conflict with the First Amendment’. Further, ‘the statute would apply with equal force to personal, whispered conversation within a home’ (Alvarez: 722). His Honor concluded that ‘[t]ruth needs neither handcuffs nor a badge for its vindication’ (Alvarez: 729), which strikes us as complacent given that the case involved such egregiously fraudulent conduct.

Since Alvarez the argument that false campaign speech is entitled to no constitutional protection under the First Amendment is much less tenable and any false campaign speech law would now have to be narrowly targeted at false speech delivered with actual malice and proven at an elevated level (Hasen, 2013). According to Eugene Volokh, in light of Alvarez, ‘general bans on lies in election campaigns would be struck down … but narrower bans on [certain] false statements … might be constitutional’. Such narrower bans may include false claims about when and where people can vote, false claims of incumbency or false claims about experience. Volokh concedes, however, that it is ‘just hard to tell [which bans are permissible], given both the limited scope of the opinions and the … [Supreme Court] split’ (Volokh, 2012).

Cases in lower courts since Alvarez seem to accord with Volokh’s predictions. For example, in Commonwealth v Lucas ((2015) 472 Mass. 387) the Massachusetts Supreme Judicial Court struck down a state law (Massachusetts General Laws ch. 56, § 42) which forbade false statements. At the time of the case the section read:

§ 42. False Statements.

No person shall make or publish, or cause to be made or published, any false statement in relation to any candidate for nomination or election to public office, which is designed or tends to aid or to injure or defeat such candidate.

…

Whoever knowingly violated any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months.

The law was struck down under Article 16 of the Massachusetts Declaration of Rights, which stipulates that ‘[t]he liberty of the press is essential to the security of freedom in a state: it ought not, therefore, be restrained in this commonwealth’ (Massachusetts Constitution, art XVI). While the law was not scrutinised regarding its incompatibility with the First Amendment, the judgement leaned heavily on Supreme Court jurisprudence on the matter, particularly on the permissibility of false statements as decided in Alvarez. The court concluded that the section ‘is neither necessary nor narrowly tailored to advancing the Commonwealth’s interest in fair and free elections, and chills the very exchange of ideas that gives meaning to our electoral system’ (Commonwealth v Lucas (2015) 472 Mass. 387, 404 (Cordy J for the Court)).

Similarly, in Susan B. Anthony List v Ohio Elections Commission ((2014) 45 F. Supp. 3d 765), the relevant United States District Court found that an Ohio law which forbade an extensive list of knowingly made false campaign statements intended to affect the outcome of a political campaign was unconstitutional. Accordingly, the law was struck down and the Ohio Elections Commission was permanently disallowed from enforcing the law. Leaning on the precedent established in Alvarez, Black J concluded that ‘we do not want the Government deciding what is political truth’ and that ultimately, ‘the voters should decide’ (Susan B. Anthony List v Ohio Elections Commission (2014) 45 F. Supp. 3d 765, 769).

Another illustrative post-Alvarez case that exemplifies distinctly American judicial and constitutional tendencies as they relate to false campaign statements is 281 Care Committee v Arneson ((2014) 766 F.3d 774). Decided in 2014, the case once again leaned heavily on the doctrines of Alvarez. The court found that the following Minnesota law was unconstitutional:

A person is guilty of a gross misdemeanour who intentionally participates in the preparation, dissemination, or broadcast of paid political advertising or campaign material with respect to the personal or political character or acts of a candidate, or with respect to the effect of a ballot question, that is designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office or to promote or defeat a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false. (Minn. Stat. § 211B.06, subd. 1)

The court held that regardless of the state’s interest in free and fair elections, and despite the prevention of fraud constituting a compelling state interest, the court determined that the statute was overbroad and not narrowly enough tailored and would therefore chill political speech (281 Care Committee v Arneson (2014) 766 F.3d 774). According to the court, the appropriate and less restrictive intervention was the application of counterspeech: ‘Especially as to political speech, counterspeech is the tried and true buffer and elixir’ (281 Care Committee v Arneson (2014) 766 F.3d 774, 793 (Beam J)).

In 2013 there were seventeen US states with statutes preventing false campaign statements, although this number continues to decline under the weight of the First Amendment; those that remain are dormant on state statute books. Scholars are generally in agreement that unless there is some modification to the way in which the First Amendment is interpreted in relation to false campaign statements, TIPA laws have little chance of constitutionally valid use. Given the protection afforded to false speech in Alvarez, this seems to be an accurate assessment.

Commentators are in general agreement that the First Amendment is a significant roadblock in the pursuit of constitutionally valid TIPA laws. But they differ in the extent to which it would invalidate different types of TIPA laws. For example, Catherine Ross has suggested that the ‘First Amendment poses a virtually insurmountable obstacle to government regulation of deceptive campaign speech’ (Ross, 2017: 406) (emphasis added). Enshrined freedom of expression implies that the ‘state cannot become the arbiter of truth, even where misleading statements are nothing more than straight-out lies’ (Ross, 2017: 406) (emphasis added). Others are more optimistic about the fate of TIPA laws in the United States. Joshua Sellers, after analysing the post-Alvarez constitutional state of play for TIPA laws, posits three potential circumstances in which false campaign statements may be delimited: foreign nationals engaging in intentional false speech expressly advocating for or against the election of a candidate; the use of false speech to undermine election administration; and the intentional falsification of mandatory disclosure filings (Sellers, 2018).

Staci Lieffring is less optimistic, suggesting that a ‘Court … [would find] any attempt to regulate false, non-defamatory statements of political speech unconstitutional’ (Lieffring, 2013: 1061). She does say, however, that the First Amendment may permit defamatory action within the arena of campaign speech but, as we have mentioned, this is not a particularly appropriate or effective solution. James Weinstein’s recent account of the issue arrives at similar conclusions. After canvassing First Amendment jurisprudence and theorising the constitutionality of various election speech prohibitions, Weinstein expects that almost all prohibitions—even those regarding time, place and manner of voting—would be found unconstitutional. However, like Volokh, Weinstein sees a possible narrow prohibition on false claims of incumbency as prima facie constitutional (Weinstein, 2018).

First Amendment jurisprudence, particularly since Alvarez, does not—and almost certainly will not—accommodate TIPA provisions. State TIPA laws have been consistently invalidated and remaining laws remain inactive with little to no chance of constitutionally valid use. While its roots are undoubtedly found earlier, post-2016 US politics appears to be undergoing an ‘epistemic crisis’ (Dahlgren, 2018). Demonstrably false statements of fact are now commonplace and seemingly part of normal political life, with the events of 6 January 2021 serving as a reminder of what can happen when such statements go unchecked. As exemplified by TIPA invalidation and the curious precedent set by Alvarez, the First Amendment has, and likely will continue, to obstruct efforts to confront twenty-first century challenges to the regulation of false campaign speech. In doing so, the founding document of American democracy may have sown the seeds of its demise.

Having explained how TIPA laws have fared outside Australia, we now turn to a close examination of the Australian case.

Notes

  1. 1.

    Gitlow v New York (1925) 268 U.S. 652 held that the 14th Amendment of the United States Constitution extended the First Amendment’s protections of freedom of speech and freedom of the press to the governments of U.S. states.

  2. 2.

    The Bill of Rights Act 1990 (NZ) prescribes Freedom of Expression and specific Electoral Rights to all citizens of New Zealand. The prerequisites for any infringement of the aforementioned rights are detailed in Section 5’s Justified Limitations which state ‘the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Edgeler therefore posits that the undue infringement cannot be demonstrably justified.

  3. 3.

    The legislation was constrained to the regulation of ‘personal statements’ as speech restrictions regarding political character or conduct would have breached the Right to Freedom of Expression in Article 10 of the European Convention on Human Rights. Since the UK’s departure from the European Union in February 2020, they are no longer bound by the Convention.

  4. 4.

    The ‘actual malice’ standard is a legal requirement imposed on public figures when they sue for libel. Such figures are required to prove a higher standard to succeed in a defamation lawsuit compared to other individuals (Goldman, 2008).