Lying is a pillar of politics, as intrinsic a piece of the American electoral system as money and fear. We lament the false attack ads, the twisted narratives, the distortions of campaigns. But a Supreme Court decision Monday raises questions about whether states’ attempt to police campaign falsehoods may be more detrimental than the lies themselves.
In a 9-0 decision, the Court ruled that the Susan B. Anthony List, a national anti-abortion group, had the right to challenge an Ohio law that criminalizes false political speech. The ruling itself has limited impact: The justices’ decision merely allows SBA List to have its case heard in federal court. But it highlights the intersection—and the conflict—between the First Amendment and the truth.
The case stems from a 2010 Congressional race in southwest Ohio. Republicans were trying to win the House by harnessing anger about the health care reform law. Steve Driehaus, a local Democratic congressman, had voted for the bill. The SBA List, which identified Driehaus as one of the nation’s most vulnerable Democrats, sought to display a billboard in Driehaus’ district that slammed the congressman for supporting “taxpayer-funded abortions.” Driehaus filed a complaint with the Ohio Election Commission, alleging that the claim violated state law against lying in political campaigns. In the end, Driehaus lost without the billboard ever going up. (He later dropped the complaint.) The SBA List filed suit in federal court, alleging that the Ohio law chilled future speech.
The Court’s ruling on Monday was limited in scope. Justice Clarence Thomas, writing for the majority, argued that SBA List had the right to challenge the law in a lower court that had previously dismissed the suit. The Court skirted the question of whether Ohio’s law was constitutional, and did not weigh in on whether SBA List was, in fact, lying when it sought to cast Driehaus as a supporter of “taxpayer-funded abortions.”
But the ruling was still an important one. It suggests the Court is deeply skeptical toward states that attempt to police political advertising. Ohio is one of 16 states with statutes on the books designed to prevent false statements in campaigns. “The burdens” that such laws “impose on electoral speech,” Thomas writes, “are of particular concern here.”
Thomas’ opinion for the Court is wonky and dense, hewing to narrow questions about the legitimacy of bringing a lawsuit to prevent future injury. But in oral arguments in April, the justices hurled spirited objections to the implications of anti-lying laws. Justice Antonin Scalia made a dark allusion to the “Ministry of Truth,” the nefarious propaganda police in Orwell’s 1984. The Court’s ruling could pave the way for a future challenge to states’ ability to guard against willful or reckless embellishment.
If the Justices ducked the question of whether the government ultimately has a role in determining an ad’s veracity, SBA List did not. “No. There is no role,” the group’s president, Marjorie Dannenfelser, told reporters on a conference call. “The truth or falsity of political speech should be judged by voters, not government bureaucrats.”
But if states can’t shield citizens from lies, what becomes of the voters who don’t have the inclination or ability to run down the facts on their own? The 2014 elections, like each one preceding them, will be a riot of spin, spurious argument and deliberate misinformation. SBA List was triumphant Monday, but their allegations against Driehaus—repeated this year against Democratic Senate incumbents in the competitive states of North Carolina, Louisiana and Arkansas—don’t entirely stand up to scrutiny. In its assessment of the abortion claim, Factcheck.org writes that “strictly speaking, the new law does not provide direct federal funding for abortion, except in cases of rape or incest, or to save the life of the mother.” Politifact also ruled the claim “false.”
Truth may be in the eye of the beholder, but someone has to hold people responsible when they pull the wool over our eyes.