Are Lies Fair in Politics?

Views You Can Use: Are Lies Fair in Politics?

An Ohio law prohibiting false statements in political campaigns is being challenged.

The Supreme Court will hear arguments Tuesday on an Ohio law restricting political attack ads.

By Teresa WelshApril 22, 2014, at 1:50 p.m.+ More

The Supreme Court will hear arguments Tuesday in a case regarding the constitutionality of political attack ads.

An Ohio law that makes it illegal to lie about candidates during a campaign was challenged by the anti-abortion group Susan B. Anthony List for an ad they produced for the 2010 congressional elections. The billboard ad accused then-Rep. Steve Driehaus, a Democrat, of supporting taxpayer-funded abortions by voting for the Affordable Care Act. Driehaus, who did not support abortion, only voted for the law after President Barack Obama said he would use an executive order to ensure health care exchange insurance plans would not use tax dollars for abortions.

Driehaus filed a complaint with the state elections commission over the ad, and it never appeared because the billboard company feared legal action and wouldn’t approve it. The former representative withdrew his complaint after he lost his re-election bid, but Susan B. Anthony List continued its legal challenge under the First Amendment. In addition to Ohio, some 15 other states also try to restrict lies in political campaigns.

[See a collection of political cartoons on the Catholic contraception controversy.]

On Tuesday, the court isn't actually considering if the Ohio law violates the First Amendment. Instead, it will address whether or not Susan B. Anthony List can legally challenge the law to begin with. So as Michael Carvin and Yaakov Roth, attorneys for Susan B. Anthony List, wrote in the Wall Street Journal, “The relevant question is thus not whether there is a constitutional ‘right to lie,’ but rather whether the state may force citizens to defend the ‘truth’ of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.”

If courts get into the business of policing the truth of political statements, notes Tony Mauro for USA TODAY, they will certainly have their work cut out for them. Politics has always been full of “lies and half-truths,” from Thomas Jefferson all the way to Obama. “But the essential question, implicit in theFirst Amendment, is whether government should intervene to referee the truth of campaign barbs,” Mauro writes. “Would political discourse really be improved by having a government 'ministry of truth' sanitizing what partisans say?”

[See a collection of political cartoons on Obamacare.]

“[T]he government should not be in the business of evaluating what is true and what is false in politics,” wrote Philip Bump for The Wire. He said it was likely that the court will open the Ohio law to legal challenges because it attempts to restrict the First Amendment. This will send the case back to lower courts to decide whether or not the law is actually constitutional.

The LA Times editorial board wrote that the Supreme Court should overturn the ruling by the lower U.S. Sixth Circuit Court of Appeals, which found that there was no case to consider because Driehaus dropped his complaint. “Citizens who believe that a law chills speech shouldn't have to surmount high legal hurdles to challenge it in court,” the editorial board wrote.

The Ohio law restricts lies about a political candidate if they are consciously made or made with “reckless” regard to factuality. “In extreme cases, a politician who feels his reputation has been besmirched by a false statement may file a civil libel suit,” wrote the editorial board. “But using criminal law to police truth in political debate is unnecessary and invites abuse.”