A PIME orginal article.
By Patrice Johnson and Elizabeth Ayoub | July 22, 2024
“What political speech is a state permitted to regulate?” an independent candidate asks as he contests fines and potential civil penalties for claiming he was a Republican.
Nathan Miller believed he was unfairly fined $250 for making a false campaign claim, and he was tempted to simply pay the $250 fine. Then he read the small print and saw his alleged offense made him subject to both civil and criminal penalties. Fearing he would become a victim of lawfare, the write-in candidate for Minnesota state senate hired a lawyer and sued. Now, Miller’s case has worked its way through the lower courts. On July 15 he petitioned the United States Supreme Court to review his charges for allegedly claiming the support of the Minnesota Republican Party.
Miller argues that Minnesota state law infringes on his right to free speech. He asks the high court to decide, “What political speech is a state permitted to regulate?” If Miller prevails, his case will have major ramifications. It would be the first time the U.S. Supreme Court has applied the First Amendment to a statutory ban on false campaign speech. A favorable ruling would mean similar statutory bans in 15 other states are also unconstitutional.
Miller escalated his lawsuit to the highest court in the land through a petition for certiorari, a type of lawsuit that argues the lower court has incorrectly decided an important question of law, and the mistake needs to be fixed to prevent confusion in similar cases.
During Miller’s 2022 campaign for the Minnesota state senate, he had lost the Republican primary so was running as a write-in candidate. A grassroots group invited him to attend its rally and speak, and the group published a flyer identifying Miller as a Republican.
The Minnesota Republican Party sued Miller under Minnesota Statutes section 211B.02, claiming he “falsely implied he had been endorsed” as the Republican-nominated candidate. The court sided with the Minn. GOP and imposed a $250 fine on Miller, along with civil and criminal penalties.
Having witnessed the weaponization of lawfare throughout the country, Miller counter sued as a defensive measure. The Office of Administrative Hearings ruled in favor of the fine and potential penalties imposed by the Minnesota court.
Miller appealed again, and the Minnesota appellate court affirmed its support of the constitutionality of the statute.
Then the Minnesota Supreme Court denied review.
Turns out, state and federal courts throughout the nation are grappling with the same question: Where does free speech end and a campaign falsehood begin? Judges’ gavels are hammering down different decisions, and confusion is mounting as conflicting state rulings checkerboard the nation.
So, Mr. Miller decided to take his case to Washington. He filed his petition in the U.S. Supreme Court, case number is 24-53.
The outcome could affect not just candidates. Citizens of all walks of life could become subject to charges of making false or misleading statements. Public-square debate, depending on the ruling, could either be stifled of uncapped.
Election integrity lives in the land where false claims end and free speech begins.
Counter intuitive as it sounds, “The U.S. Supreme Court should grant Mr. Miller’s petition,” Erick G. Kaardal told Michigan Fair Elections. Kaardal, an election integrity advocate and Miller’s attorney, argues that when false speech is tamped down, the actions also stymie free speech.
“Two federal court of appeals cases have found similar statutes unconstitutional because banning false campaign speech deters open debate and truthful speech,” Kaardal explained.
Miller’s case serves as a prime example. The Republican Party of Minnesota sued Miller for claiming he was the Republican nominee. “But, Miller, as a write-in candidate, did no such thing,” Kaardal said. “Miller ran against the Republican nominee.” Kaardal reminded the court that a third-party advertiser, not Miller, used the word Republican when promoting its event.
Miller had lost a primary bid to become the Republican candidate and was running as an independent. Even so, he stood for and held conservative and Republican values.
Where the rubber met the road for Minnesota’s Republican Party
Minnesota enacted a law prohibiting a person or candidate from making a false claim or even implying the support or endorsement of a major political party without the party’s consent. False campaign claims—even of political party support and if made by third parties—can incur civil fines of up to $5,000 and criminal misdemeanor penalties.
Minnesota courts, to their credit, came down in favor transparency from the minute a candidate files paperwork to be placed onto the ballot to the time the election results are certified. Within that time period, the court decided, voters need to be able to trust the truth in what they read, see, and hear about a candidate.
In Miller’s case, however, Kaardal contends that the law represents a threat to free speech. Subjecting the population to the ministry of truth opens the door to abuse. It stifles discussion, said Kaardal, an attorney of more than 30 years with two Supreme Court wins and 63 election integrity wins under his belt.
“We believe that these stupid state laws banning false campaign speech have to go.”
In contrast to Minnesota and fifteen other states that punish false campaign speech, about 30 other states impose no such penalties on campaign speech—false or otherwise. Of note: The mighty federal government, which accounts for at least 23 percent of the economy, adheres to no such constraints either.
Miller, through his attorney, is asking the court to resolve the inconsistencies and level the playing field.
“How can I, as an independent candidate who shares a philosophy that is espoused with a national political party, express this alignment to potential voters without it resulting in charges and fines?” Miller asked. “Does it really violate the U.S. Constitution for me to state this?”
Two federal appellate decisions have found similar state laws unconstitutional. The Eighth Circuit decision in 281 Care Committee v. Arneson held a Minnesota statute, section 211B.06, unconstitutional. The Sixth Circuit decision in Susan B. Anthony List v. Dreihus held a similar Ohio statute unconstitutional.
Miller’s new docket entry, “Petition for a writ of certiorari filed. (Response due August 16, 2024)” can be found at Nathan Miller, et al., Petitioners v. Republican Party of Minnesota, et al.
The framers of the U.S. Constitution formed the judicial branch of government and the United States Supreme Court specifically to ensure peaceful resolution of this sort of legal conflict. In this case, Miller is asking the justices to determine, for all candidates who wish to inform voters and for all states seeking to protect candidates from misleading the public, where the right to free speech ends and misrepresentation of the facts begins—an important question for those who care about election integrity.
Attorney Erick Kaardal, a partner with Mohrman, Kaardal & Erickson, P.A., is a graduate of Harvard and earned his law degree from University of Chicago. He built his career on leveling the playing field for working people against the government.
Patrice Johnson, chairs Pure Integrity Michigan Elections (PIME) and Michigan Fair Elections (MFE). A former teacher, Patrice has founded five successful companies and served as senior executive with a Fortune 100 technology company. In 2017, she authored the book, the Fall and Rise of Tyler Johnson, the basis of a PBS documentary film, Finding Tyler. Questions or comments? Contact patrice@mifairelections.org.
Elizabeth Dallam Ayoub is a PIME and MFE contributor. She started her career working for an international company, transitioned into teaching French and Latin while her children were young, and then became a Michigan attorney.
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The views and opinions expressed in this commentary are those of the authors and do not reflect the official position of Pure Integrity Michigan Elections. Every article written by a PIME author is generated by the author or editor alone. Links embedded within the article, however, may have been generated by artificial intelligence.