Wait, Wait: Ohio law against lies meets 1st Amendment

obama changeBy Rady Ananda
COTO Report

Is a Supreme Court brief ever gut-splitting funny? It is when satirist P. J. O’Rourke writes it.

Having served as a paralegal for a couple decades, and later as a writer who follows Supreme Court decisions on food and other matters, like most of the public, I’ve found their rulings inordinately dry, even amid their life-changing effects. So, when a friend passed on a link to a Friend-of-the-Court (amicus) brief in a recent First Amendment case against an Ohio law that criminalizes political lies, I expected more snooze material.

I was delightedly wrong. O’Rourke, who’s often a guest on NPR’s Wait, Wait… Don’t Tell Me, was assisted in the amicus brief by the CATO Institute, which promotes “individual liberty, free markets, and limited government.”

The question discussed is, Can a state government criminalize political statements that are less than 100% truthful?

The brief opens its argument against the Ohio law with these infamous presidential lies:

  • I am not a crook.
  • Read my lips: no new taxes!
  • I did not have sexual relations with that woman.
  • Mission accomplished.
  • If you like your healthcare plan, you can keep it.

(I’d have included Obama’s GMO-label promise, “We’ll let folks know if their food has been genetically modified because Americans should know what they’re buying.” But since he delivered on none of his campaign promises, I guess they could only pick one. Levity is easier with brevity.)

Passed in 1995, Ohio Revised Code §3517.21 ran into a snag in 2011 when US Representative Steve Driehaus used it to sue the Susan B. Anthony List, a group that supports pro-life candidates. According to the Ohio ACLU, another amicus in the case, the facts are as follows:

Ohio Revised Code 3517.21(B) prohibits making or distributing “false” statements about candidates for political office. Susan B. Anthony List (SBA List), a pro-life group, sought to distribute this message critical of Congressman Driehaus’s vote in favor of the federal health care bill: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Driehaus filed a complaint with the Ohio Elections Commission, pursuant to RC 3517.21(B), alleging that SBA List violated state law by making a false statement about him and his voting record, and asserting that the federal health care bill does not publicly fund abortion. OEC found probable cause to believe the ad violated the statute. Driehaus commenced the discovery process. SBA List filed suit in federal court against Driehaus and the Ohio Elections Commission, claiming that RC 3517.21 is an unconstitutional restriction on speech….

On January 10, 2014, the Supreme Court granted certiorari to hear the issues presented by SBA List.

Most of the argument in the amicus brief filed by CATO and O’Rourke rests on a 2012 case: United States v. Alvarez, 132 S. Ct. 2537, wherein the US Supreme Court held that outright lies are as protected by the First Amendment as is the truth.

They dropped some real comic gems in support of finding the Ohio law unconstitutional:

“If the historical record provides evidence for any longstanding tradition in this regard, it is the venerable practice of politicians’ lying about themselves and each other with complete impunity.”

And:

“This Court should terminate it with extreme prejudice.”

A driving point and source of continued levity throughout the brief is its discussion of “truthiness.” Citing comedian Stephen Colbert, we learn this is “a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic.”

Truthiness, we’d all agree, “is also a key part of political discourse,” the brief continues. “It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.”

They go on:

“It is thus axiomatic—not merely truthy—that speech may only be restricted or regulated where doing so is necessary to further a compelling state interest. But the government has no compelling interest in eliminating truthiness from electioneering and, even if such an interest existed, such laws are unnecessary because any injury that candidates suffer from false statements is best redressed by pundits and satirists—and if necessary, civil defamation suits.”

And, surely to amuse the High Court as well as any other readers, the brief mentions political scandals relating to premarital sex, extramarital affairs, place of birth, and mudslinging – from the birth of the nation to the present. It pokes fun at both Dems and Repubs, and cites as its authority rags like Mother Jones, Politifact.com and Wikipedia.

No matter what your political bent, most would agree with the brief’s conclusion:

“A crushing send-up on The Daily Show or The Colbert Report will do more to clean up political rhetoric than the Ohio Election Commission ever could.”

You can read the 24-page brief here.

An earlier version of this article first appeared at Activist Post.

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