HB 1204: Committee Votes To Expand Constitutionally Questionable Law
Regulating political speech is generally a cut and dry area of constitutional law. A committee this morning voted to expand a law to regulate MORE political speech rather than the real issue.
Background Behind HB 1204
North Dakota, like many states, has laws on the books that are questionable from a constitutional standpoint - but because nobody has sued the state over the constitutionality, and it is rarely enforced, nothing happens and the law remains on the books.
Readers of my articles know that I cite the state’s Corrupt Practices Act a lot when it comes to official government acts and campaigning with public dollars.
One part of the North Dakota Corrupt Practices Act that is likely unconstitutional and ripe for abuse/corruption itself is:
N.D.C.C. 16.1-10-04. Publication of false information in political advertisements - Penalty.
A person is guilty of a class A misdemeanor if that person knowingly, or with reckless disregard for its truth or falsity, publishes any political advertisement or news release that contains any assertion, representation, or statement of fact, including information concerning a candidate's prior public record, which is untrue, deceptive, or misleading, whether on behalf of or in opposition to any candidate for public office, initiated measure, referred measure, constitutional amendment, or any other issue, question, or proposal on an election ballot, and whether the publication is by radio, television, newspaper, pamphlet, folder, display cards, signs, posters, billboard advertisements, websites, electronic transmission, or by any other public means. This section does not apply to a newspaper, television or radio station, or other commercial medium that is not the source of the political advertisement or news release.
This is an outright attempt to regulate political speech. Beyond likely being unconstitutional, it is poorly worded and nearly impossible to enforce.
In 2018, I was doing private consulting work (not in my capacity with the ND Watchdog Network) for Duane Sand who was running in the primary against former Representative George Keiser.
I made an error and marked down that Rep. Keiser voted “no” on a bill, when in fact he was “absent not voting”. Campaign materials were distributed with this error, and former Representative George Keiser filed charges against Duane Sand.
It was then discovered that Rep. Keiser had also published false statements about Duane Sand, and so charges were filed against Rep. Keiser as well.
When I was interviewed by the police officer, I stated the error was my own and unintentional. The police officer asked me to explain how campaigns and campaign laws work, as he did not understand that area of law because it is an area of law that police officers do not and should not deal with.
Ultimately the charges were dropped, but it created a lot of work for police.
Columnist Rob Port covered the situation at the time.
In this article, Rob Port wrote about how laws similar to this law have been struck down in other states:
A law in another state similar to the one Sand is charged with breaking have been reviewed by the courts and struck down. Susan B. Anthony List v. Driehaus was a case concerning an Ohio law which made it illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate…if the statement is designed to promote the election, nomination, or defeat of the candidate.”
It involved the group, SBA List, running an ad stating that a Democratic congressional candidate had voted for taxpayer funded abortions, a claim the candidate said was false.
The case went to the U.S. Supreme Court where SAB List won, and ultimately the state law was struck down in district court. “We do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the government might persecute those who criticize it,” Judge Timothy Black wrote in his opinion. “Instead, in a democracy, the voters should decide.”
I think that’s exactly right.
Keiser filing a criminal complaint against Sand over this issue does not reflect well on his character. Local prosecutors turning that complaint into criminal charges does not speak well for their judgment.
I hope Sand fights this charge. That’s his decision to make, and it’s understandable if he doesn’t want the headache, but this law is worth challenging.
Back To HB 1204
This brings us back to HB 1204 which intends to add “social media” to the types of speech regulated under this likely unconstitutional law.
The House Political Subdivisions committee hearing and discussion can be viewed here:
The committee voted to leave the existing list of types of media in the law and to add the “social media” item to list and then gave it a 10-2 Do Pass recommendation.
This bill should never have been in the House Political Subdivisions Committee in the first place, it should have been in the House Judiciary Committee.
When this bill hits the House floor, it should be re-referred to the House Judiciary Committee so that a conversation on constitutionality can be had. I submitted testimony alluding to the constitutionality and the enforceability of the existing law, but was unable to make it to the hearing.
Adding Social Media To A Regulated Form Of Speech Is Hypocritical Based On The Decisions Made In The Myrdal Case
Beyond the constitutional problems with the law itself, this bill should be examined in conjunction with an incident that happened a few months ago.
Back in November, I wrote about how legislative management reimbursed State Senator Janne Myrdal for her court case where she was accused of censoring comments on her Facebook Page:
The North Dakota Monitor wrote a detailed article about it.
In response I wrote:
This is fascinating because there are legal precedents regarding how elected officials manage their social media.
The fact that the judges stated that Senator Myrdal was acting privately raises the question of whether the legislature should be paying her legal fees.
“A state district court judge dismissed the lawsuit earlier this year, finding that the Edinburg Republican had acted as a private citizen, not a representative, when she blocked Sanderson and therefore had not violated his rights. Sanderson was ordered in December 2023 to reimburse Myrdal for $4,975, the majority of which came from attorneys fees. That order came before Sanderson appealed the case to the North Dakota Supreme Court.
The higher court last week upheld the district court’s decision.”
Because this is the first case, there are no rules. But the legislature should consider options to prevent the taxpayers from being a target for these things in the future.
The City of Bismarck is also examining its social media policies.
What should be done?
There are several options to tackle this:
Have the legislature enable some form of “professional liability insurance” to be offered, then require elected officials to take out a policy (or cover a policy on their behalf as a fringe benefit.)
Carve out protections from lawsuits and cap fines for elected officials violating rules/laws.
Encourage elected officials to just stay off social media.
#1 would be the free market solution, if an insurance company would want to cover such a thing.
#2 would create a standard mechanism while risking a chilling effect on free speech of citizens.
#3 would create an inherent chilling effect on the free speech of elected officials.
If the 1st incident is going to cost taxpayers almost $50,000 then clearly something needs to be done before it becomes open season in the courts for this sort of thing.
Conclusions
Is the legislature trying to protect its members by regulating speech on social media so that its members can use an unconstitutional law as a defense in court when they get caught censoring commenters?
Does North Dakota really want to simultaneously criminalize political speech AND spend taxpayer dollars defending elected officials that censor their own constituents?
This entire law needs to be re-examined, even if it means a lawsuit. But the legislature should certainly stop adding to the ways it tries to regulate speech in ways that likely violate the 1st Amendment.
Beyond the 1st Amendment implications, the issue of enforcement arises - both “how” and “who”.
In order to effectively enforce this law, there would need to be a “Free Speech Police Officer”, perhaps to cover the entire state, that specializes in these issues.
If the legislature passes this bill, or even keeps the existing law, it should address the enforceability of the law as well as what the guardrails to protect against abuse might be.