by Brian R. Merrick

Cape Cod Times column, May 16, 2015

The Massachusetts Supreme Judicial Court recently heard oral arguments in a case arising out of Barnstable County that may have a major impact on the future of political speech in Massachusetts.

Even casual readers of the Cape Cod Times will be aware that during the recent election a political action committee opposed to the re-election of state Rep. Brian Mannal, D-Centerville, distributed a rather lurid pamphlet stating generally that “Brian Mannal chose convicted felons over the safety of our families.”

Specifically the pamphlet, under the title “Helping Himself,” stated: “Lawyer Brian Mannal has earned nearly $140,000 of our tax money to represent criminals. Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders.”

In fact, Mannal did introduce legislation facilitating appointment of publicly paid counsel to represent offenders at the Sex Offender Registry Board, or SORB. However, although he was a bar advocate accepting appointments for pay to represent indigent criminal defendants, Mannal was not certified to represent offenders at the SORB.

Mannal was a smart enough lawyer to apply at Barnstable District Court for a criminal complaint against the PAC’s treasurer under an antique and obscure statute that makes it a criminal offense punishable by fine or up to six months imprisonment to publish knowingly any “false statement” about a candidate. Following much legal maneuvering, not germane to this discussion, a criminal complaint was issued by the Falmouth District Court and the case was brought before the Supreme Judicial Court on the issue of its constitutionality.

Attorney General Maura Healey, charged with defending the constitutionality of any statute, whether she likes it or not, has filed a brief with underwhelming arguments in support of the constitutionality of the statute. Her brief argues much more persuasively that the case should be dismissed because 1) proceedings at the Falmouth District Court that might render the issue moot should they be completed before the SJC considers it, and 2) the statements about Mannal could be considered opinion rather than fact and thus not a violation of the statute.

Specifically the Attorney General asserts that even though Rep. Mannal is not certified to defend sex offenders, more business for certified sex offender counsel could draw attorneys into that field and reduce competition for the general criminal defense work which Mannal does perform. Specious perhaps, but splitting hairs is the very nature of the criminal process as opposed to robust political debate.

The distinctions involved are not often so clear. To take two universally known examples, are the following statements fact or opinion? True or false?

• President Bush lied when he said Iraq had weapons of mass destruction.

• President Obama lied when he said, “If you like your health coverage, you can keep it.”

Not all candidates who file criminal complaints will be as sincere as Rep. Mannal. Not all elected prosecutors will be as principled as Cape and Islands District Attorney Michael O’Keefe or Attorney General Healey. Examples in other states abound of abuse of prosecutorial office to harass political opponents.

The danger to our First Amendment freedom of speech does not just come from the evil or unscrupulous. History shows that even good men can seek to repress what they perceive as the plain malice of their critics. In 1798 John Adams signed the Sedition Act which punished “any false, scandalous and malicious writing” against the government and used it to prosecute numerous opponents. Thomas Jefferson condemned the act but used it himself against his opponents before it expired, although he pardoned and returned fines to those Adams prosecuted.

The issue has drawn numerous civil libertarians, newspapers, television stations and foundations to join “friend of the court” briefs against the statute. It seems likely that, if it does not dispose of the case on other grounds, the SJC will declare the statute unconstitutional. If that does not happen, the law should be repealed.

It is not enough to say that groundless or frivolous charges will be resolved in favor of the defendant. Even if the accused ultimately prevails in the criminal proceeding, the expense and stress of defending one is an unacceptably chilling burden on free political speech.

Lies in political campaigns are bad. The criminalization of politics is worse.

— Brian R. Merrick of West Barnstable is a retired first justice of the Orleans District and a visiting scholar in the history department at Suffolk University.