Political satire, long a fixture of American politics, by very definition often contains statements that are objectively false. But some states just don’t have a sense of humor. For example, Tennessee has criminalized political satire opposing a candidate for elected office when it contains an objectively false statement. In other words, if you hand out campaign literature containing any false statement in opposition to a candidate for office in Tennessee, you could go to jail. Recognizing that this violates the First Amendment, Tennesseans for Sensible Election Laws (TSEL) filed a lawsuit against Tennessee and prevailed. But an appellate court reversed, not because the law didn’t run afoul of the Constitution, but because it thought that TSEL had challenged the law prematurely. The appellate court was wrong to allow the law to stand. There is no doubt that it violates the First Amendment. The courts should act swiftly, not haltingly, in defense of free speech.
Southeastern Legal Foundation and the Institute for Justice filed a brief in support of TSEL, asking the Tennessee Supreme Court to take up the case. Citizens don’t need to be face criminal prosecution before they can challenge a blatantly unconstitutional law. For our nation to continue to have a robust and healthy political debate, we need to have free reign to make fun of our candidates for office.
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In this case, TSEL published satirical mailers. The mailers contained humorous statements that a particular candidate had “cauliflower for brains,” or that he was “literally Hitler.” These statements are technically false—no one has vegetable for a brain—and criminally punishable even though no one could ever actually be deceived by such a silly claim.
After all, political satire is as old as the country itself. And anyone who would republish TSEL’s mailers on social media or elsewhere likewise faced jail time. Still worse, the law discriminates based on viewpoint; it isn’t a crime to make a false statement in favor of a candidate. For these reasons, a lower court already found that the law was unconstitutional. There’s no good reason why the appellate court should have found that that TSEL and countless others needed to face imminent risk of imprisonment before the law can be challenged.