Associated Press Report:
Former Superintendent of the Northern Virginia School System [Scott Ziegler] has been indicted on three misdemeanor charges by a special grand jury investigating responses to two sexual assaults committed by a student last year. …
The three misdemeanor counts against Ziegler include one count of false posting, one count of prohibited conduct related to alleged retaliation against a teacher, and one count of punishing an employee for appearing in court.
The indictment, which was unsealed on Monday, contained few details, but the false publication count appears to be related to a statement Ziegler made in June 2021 denying any assaults in school restrooms. In fact, the first sexual assault occurred a month earlier in a Stonebridge High School bathroom, and emails show Ziegler was made aware of it.
Ziegler later said he misunderstood the question…
the trouble is False Publication Act may violate the First Amendment (see also this article Quinn Hillier [Washington Examiner]). The statute reads,
Any person who willfully and knowingly declares, delivers or transmits in any way to any publisher of any newspaper, magazine or other publication or to any publisher of any newspaper, magazine or other publication or to any publisher or employee of a publisher or to any owner or employee of the owner of any radio station, television station, news service or Wire Services, any false and untrue statement, knowingly false or untrue, about any person or company, with intent to publish, broadcast or otherwise communicate it, is a crime 3 misdemeanor.
Now, if this were limited to false statements that seriously damage someone’s reputation, it would be a criminal defamation statute, which is constitutional (see This recent First Circuit case and this my previous post). But this also applies to statements about individuals and companies that don’t damage reputations, and indeed to false statements about oneself (since it’s a statement about “anyone”).
while in United States v. Alvarez (2012), the Court struck down the Stolen Courage Act, concluding that false statements about oneself—and indeed many other types of false statements—are generally protected by the Constitution.under AlvarezBy the same logic, the First Amendment would likewise protect many statements about other people that would not defame or otherwise harm the person being spoken about (more on that below).
This means that Virginia’s statute is unconstitutionally overbroad because it covers a wide range of constitutionally protected speech. Stricter statutes against certain types of lies are indeed constitutional. (I set aside the question of when honest wrongdoing, whether justified or unreasonable, could lead to civil action or even conviction; we’re talking about knowing a lie here.) For example,
- As I mentioned, laws that prohibit lies that damage someone’s reputation are constitutional.
- So are laws against lies designed to defraud people of money (including, for example, in charitable fundraisers).
- So whether the law prohibits it exists in the context of commercial advertising.
- The same goes for laws against lying under oath.
- So (probably) the law prohibits lying to government officials, whether police or otherwise, in relation to matters they deal with in an official capacity; an example is 18 USC § 1001, which generally prohibits lying to federal government officials. (I wanted to see if Virginia had a law about statements to Virginia officials, but couldn’t find one, and in any case, there is no such allegation in this indictment.)
- So it’s (almost certainly) that laws that prohibit false statements about a specific person are deeply offensive and therefore painful (the so-called “false light” tort), even if they don’t damage reputations.
There are other examples, so many lies are indeed punishable. But the particular Virginia statute used here may be unconstitutional and overly broad. [UPDATE: Just to be clear, this means that it violates the First Amendment on its face, and thus can’t be applied to Ziegler or to anyone else, even if Ziegler’s speech might have been punishable using a narrower statute.] While I can imagine the court trying to narrow the scope of the statute by limiting it to reputation-damaging lies, I don’t think that would help the prosecution: I don’t think Ziegler’s statement damaged the reputation of anyone he spoke to.
Note that I’m not talking here about other crimes Ziegler has been charged with, or any other crimes he might be charged with.
