Truthiness and Free Speech: Supreme Court Takes Up Important First Amendment Case

The Supreme Court (SCOTUS) recently agreed to hear a case that has important implications for political discourse in campaigns. Indeed, this case has a little bit of everything: abortion rights, free speech, campaign finance and PACs.

Here's what happened: an anti-abortion PAC, Susan B. Anthony List (SBA List), wanted to put up billboards in incumbent Democratic congressman Steve Driehaus's district stating: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortions." Driehaus claimed this was a false statement (on which more below) and reported the statements to the Ohio Elections Commission. Along the way, Driehaus threatened the company who owned the billboards with legal action, so the "taxpayer-funded abortions" signs never went up.

In Ohio, as in many states, it is a criminal offense to "knowingly" make false statements about a candidate that are intended to promote a candidate's victory or defeat. So after Driehaus' complaint, SBA List had to go defend itself in a "probable cause" hearing before the Elections Commission. The OEC found that there was probable cause that the statements were false (2-1, with the one Republican voting "nay"). However, after Driehaus lost his re-election bid in 2010, his complaint to the Elections Commission was dropped.

In the interim, SBA List filed suit against Driehaus and the Elections Commission alleging that the Ohio law re: knowingly making false statements about a political candidate violated its free speech rights (in the jargon, SBA List's speech was "chilled"), even though it contended that its statements were not in fact false. SBA List alleged that it was scared to speak its mind on abortion because it might be forced to defend its speech whether truthful or otherwise. Whether this sentiment is actually true is a point of contention; SBA List, in other media fora, still told voters that Driehaus voted for taxpayer-funded abortions.

The lower courts dismissed SBA List's suit on technical (i.e., jurisdictional) grounds saying that the anti-abortion PAC had not shown that its free speech rights were really ever in jeopardy because there was no credible threat of prosecution. SCOTUS, in deciding to hear the case, likely has a different view. Rarely does the Court decide to hear a case only to then decide it doesn't have anything substantive to say on the issue (you can be fairly certain at least four Justices disagree with the lower courts; that's how many Justices have sign on to hear a case).

You may be surprised to learn that even some false speech is entitled to protection under the First Amendment--it's true. And it's worth noting that the Supreme Court has been rather solicitous of First Amendment claims in recent years--as one scholar put it, "if the First Amendment had a Facebook page, the Roberts Court would 'like' it."

But let's back up here for a moment. SBA List's claim that Obamacare, and the politicians who voted for it, supply tax-payer funded abortions, can be spun out of only the most tendentious cloth. As Politico reported:

Federal law prohibits taxpayer-financed abortion, and that was addressed in the compromise that paved the way for final passage of President Barack Obama's health law. But the Affordable Care Act also allows states to ban abortion coverage in the exchanges -- even if the state isn't running its own exchange -- and most of the GOP-led states have done so.

Indeed, Ohio is one of those states. It is not worth recounting here the semantic gymnastics that SBA List went through to arrive at its position that Obamacare gives away tax-funded abortions, only that it was engaging in what we have come to know as truthiness.

So, the statute serves a purpose, right? When most people agree that you're making up lies about a candidate, we should not allow that, right? There should be a limit on how much false speech we constitutionally protect, correct?

Well, it depends on whose political ox is being gored. What if it's your pet cause that is being judged by state bureaucrats to be false? And do we really want state bureaucrats to be determining what's true? This is where I think the Supreme Court's concern lies. And it is likely that the Ohio statute will be struck down as unconstitutional.

But this hardly solves the problem of our political discourse and its descent into truthiness. We have reached a post-modern stage where the truth is relative, a construction of human beings and their biases. Ohio's statute was an attempt to slow or reverse this descent. A flawed one perhaps, but a recognition of the rot in our political discourse.

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