The Volokh Conspiracy - "Threatening" Campaign Speech?

From a decision of the Minnesota Office of Administrative Hearings:

[Finding of Fact] 3. Prior to the November 7, 2006, general election, [incumbent councilman] Mr. Phillips prepared a campaign flyer that listed negative “facts” about [challenger] Mr. Menne. The heading of the flyer stated, “THE MANY FACTS ABOUT GARY MENNE.” Under the heading, Mr. Phillips stated the following:

Fact #1 – Mr. Menne for three years has NOT paid his water/sewer bill with the City of Wyoming and now owes over $2900.00 to US. Question? – Is this the type of person YOU want running OUR city? Someone that feels he is above the rest of US.

Fact #2 – Mr. Menne has his property newly listed with Welsh Properties for sale. Question? – Doesn’t this show he has NO commitment to the CITIZEN’S of Wyoming for which he is supposed to support?

Fact #3 – Attached you will see Mr. Menne’s issues when it comes to doing business as a person in Wyoming. He has many judgments against him, which will tell you that we ALL may have to pay the price for his poor decisions he makes while on council.

NOW you have a choice – Take down the sign in your yard and tell your neighbors that you NO longer support Mr. Menne for the facts listed above. The only way to avoid Mr. Menne getting into office is to vote for the incumbents – ANDERSON – PHILLIPS – ZERWAS. If you don’t remove the sign and still believe in Mr. Menne than you must believe in cheating the rest of US in the city and that will not go unnoticed in the future. THANK YOU.

4. Mr. Phillips attached eight sheets to the flyer that listed judgments and liens filed against Mr. Menne personally or against his business, Gary F. Menne and Son Inc., as well as UCC filings made by Menne and Son Inc. with several local banks. Mr. Phillips believed that Mr. Menne did not deserve election to the Council and that it was important for the voters to have this information....

6. On Saturday, November 4, 2006, Mr. Phillips [anonymously] placed the flyer in the newspaper boxes of persons who had posted lawn signs in their yards in support of Mr. Menne’s candidacy. Mr. Phillips disseminated approximately 90 copies of the flyer....

19. Frank Pechaver is a Wyoming resident who received the campaign flyer in his newspaper box. He and his wife had a lawn sign in support of Mr. Menne’s candidacy on their front lawn. Mr. Pechaver found the flyer to be very intimidating and threatening. Mr. Pechaver understood the flyer to mean that the three Council members (Anderson, Phillips and Zerwas) were going to come after him for having a Gary Menne sign in his yard and that he also would be watched if he did not remove that sign from his yard.... [Other examples omitted. -EV] ...

[Conclusion of Law] 2. Minn. Stat. § 211B.07 provides, in part, as follows:

A person may not directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question....

4. The Complainant has demonstrated that the Respondent threatened coercion, harm, loss, reprisal, or undue influence to compel individuals to vote for him or against Mr. Menne.

5. The violation was committed deliberately, but the threat was vague, diffuse, and had no or minimal impact on the voters. The Respondent shall be fined $600 for the violation....

Phillips' behavior was pretty bad, and likely bad politics, too. (Note that Phillips lost, and Manne won.) But should it be treated as a constitutionally unprotected threat? The statement "If you don’t remove the sign and still believe in Mr. Menne than you must believe in cheating the rest of US in the city and that will not go unnoticed in the future" is ambiguous -- it may be a threat of (unconstitutional) official retaliation by the city council, it may be a threat of violent reprisal (probably not very likely, though it might be if there had been a history of such violence in town), it may be a threat of social ostracism, or it may be a threat of economic boycott. Threats of violent reprisal or unconstitutional official retaliation are clearly unprotected. Threats of social ostracism, and of politically motivated economic boycott by consumers (though perhaps not always by businesses) are generally protected, see the Supreme Court's 1982 NAACP v. Claiborne Hardware decision.

It's possible that the administrative panel resolved the ambiguity by hearing the witnesses and determining what Anderson intended to threaten, and how reasonable witnesses would have perceived the threat. (Threats, according to the Supreme Court's Virginia v. Black decision, are unprotected if they are intended to intimidate through the threat of constitutionally impermissible retaliation and they would reasonably be understood this way.) The decision doesn't discuss this, but maybe this finding is implicit. On the other hand, if the panel generally assumed that all threats of retaliation, including social ostracism and individual politically motivated economic boycott, are punishable, then the panel was likely mistaken.

Note also that the statute itself draws no distinction between threats of economic boycott (and possibly social ostracism) and punishable threats: It equally prohibits threats of "force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury," when made to compel the individual to vote for or against a candidate or ballot question." That might make the statute unconstitutionally overbroad, because even though much of the speech that it punishes -- possibly including the speech in this very case -- is constitutionally unprotected, the statute also punishes a substantial amount of constitutionally protected speech (possibly threat of "harm" in the sense of social ostracism, and likely threat of "economic reprisal" in the sense of politically motivated economic boycott), at least unless state courts interpret the statute narrowly so as to exclude such speech.

	[Eugene Volokh, February 28, 2007 at 5:07pm] Trackbacks "Threatening" Campaign Speech? From a decision of the Minnesota Office of Administrative Hearings: [Finding of Fact] 3. Prior to the November 7, 2006, general election, [incumbent councilman] Mr. Phillips prepared a campaign flyer that listed negative “facts” about [challenger] Mr. Menne. The heading of the flyer stated, “THE MANY FACTS ABOUT GARY MENNE.” Under the heading, Mr. Phillips stated the following: Fact #1 – Mr. Menne for three years has NOT paid his water/sewer bill with the City of Wyoming and now owes over $2900.00 to US. Question? – Is this the type of person YOU want running OUR city? Someone that feels he is above the rest of US. Fact #2 – Mr. Menne has his property newly listed with Welsh Properties for sale. Question? – Doesn’t this show he has NO commitment to the CITIZEN’S of Wyoming for which he is supposed to support? Fact #3 – Attached you will see Mr. Menne’s issues when it comes to doing business as a person in Wyoming. He has many judgments against him, which will tell you that we ALL may have to pay the price for his poor decisions he makes while on council. NOW you have a choice – Take down the sign in your yard and tell your neighbors that you NO longer support Mr. Menne for the facts listed above. The only way to avoid Mr. Menne getting into office is to vote for the incumbents – ANDERSON – PHILLIPS – ZERWAS. If you don’t remove the sign and still believe in Mr. Menne than you must believe in cheating the rest of US in the city and that will not go unnoticed in the future. THANK YOU. 4. Mr. Phillips attached eight sheets to the flyer that listed judgments and liens filed against Mr. Menne personally or against his business, Gary F. Menne and Son Inc., as well as UCC filings made by Menne and Son Inc. with several local banks. Mr. Phillips believed that Mr. Menne did not deserve election to the Council and that it was important for the voters to have this information.... 6. On Saturday, November 4, 2006, Mr. Phillips [anonymously] placed the flyer in the newspaper boxes of persons who had posted lawn signs in their yards in support of Mr. Menne’s candidacy. Mr. Phillips disseminated approximately 90 copies of the flyer.... 19. Frank Pechaver is a Wyoming resident who received the campaign flyer in his newspaper box. He and his wife had a lawn sign in support of Mr. Menne’s candidacy on their front lawn. Mr. Pechaver found the flyer to be very intimidating and threatening. Mr. Pechaver understood the flyer to mean that the three Council members (Anderson, Phillips and Zerwas) were going to come after him for having a Gary Menne sign in his yard and that he also would be watched if he did not remove that sign from his yard.... [Other examples omitted. -EV] ... [Conclusion of Law] 2. Minn. Stat. § 211B.07 provides, in part, as follows: A person may not directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question.... 4. The Complainant has demonstrated that the Respondent threatened coercion, harm, loss, reprisal, or undue influence to compel individuals to vote for him or against Mr. Menne. 5. The violation was committed deliberately, but the threat was vague, diffuse, and had no or minimal impact on the voters. The Respondent shall be fined $600 for the violation.... Phillips' behavior was pretty bad, and likely bad politics, too. (Note that Phillips lost, and Manne won.) But should it be treated as a constitutionally unprotected threat? The statement "If you don’t remove the sign and still believe in Mr. Menne than you must believe in cheating the rest of US in the city and that will not go unnoticed in the future" is ambiguous -- it may be a threat of (unconstitutional) official retaliation by the city council, it may be a threat of violent reprisal (probably not very likely, though it might be if there had been a history of such violence in town), it may be a threat of social ostracism, or it may be a threat of economic boycott. Threats of violent reprisal or unconstitutional official retaliation are clearly unprotected. Threats of social ostracism, and of politically motivated economic boycott by consumers (though perhaps not always by businesses) are generally protected, see the Supreme Court's 1982 NAACP v. Claiborne Hardware decision. It's possible that the administrative panel resolved the ambiguity by hearing the witnesses and determining what Anderson intended to threaten, and how reasonable witnesses would have perceived the threat. (Threats, according to the Supreme Court's Virginia v. Black decision, are unprotected if they are intended to intimidate through the threat of constitutionally impermissible retaliation and they would reasonably be understood this way.) The decision doesn't discuss this, but maybe this finding is implicit. On the other hand, if the panel generally assumed that all threats of retaliation, including social ostracism and individual politically motivated economic boycott, are punishable, then the panel was likely mistaken. Note also that the statute itself draws no distinction between threats of economic boycott (and possibly social ostracism) and punishable threats: It equally prohibits threats of "force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury," when made to compel the individual to vote for or against a candidate or ballot question." That might make the statute unconstitutionally overbroad, because even though much of the speech that it punishes -- possibly including the speech in this very case -- is constitutionally unprotected, the statute also punishes a substantial amount of constitutionally protected speech (possibly threat of "harm" in the sense of social ostracism, and likely threat of "economic reprisal" in the sense of politically motivated economic boycott), at least unless state courts interpret the statute narrowly so as to exclude such speech.