First Amendment Battle?

Two Ohio based judges have come to differing conclusions on the ability of the state to penalize lying in the political arena. 

A little more than a week ago, U.S. District Court Judge Tim Black

issued a decision that the First Amendment protects political lies in the case of Susan B. Anthony List v. Ohio Elections Commission. SBA is a pro-life group political action group. During the 2010 congressional elections, SBA paid for billboards that would say: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”  Driehaus was an Ohio congressman who voted in favor of the Affordable Health Care Act. His vote for the AHCA was, in the view of the SBA group a vote FOR taxpayer-funded abortion.

According to Driehaus, that is not true. Here’s what the Act says at Section 1301(b)(2)(A)-(C):

If a health care plan chooses to cover abortion services beyond those currently permitted under the Hyde Amendment, the issuer of the plan is prohibited from using federal subsidies to pay for those abortion services and must follow ACA’s segregation requirements.

So it’s pretty hard to square the plain language of the law with the SBA’s statement.  And despite a finding by the Ohio Elections Commission that the statement is false, SBA has made it clear that they intend to make the same accusation against other congressmen going forward.    

Under an Ohio law, any person who knowingly lied to advance a political candidate or cause could be convicted of a misdemeanor.  Given the OEC’s finding, SBA found itself in that predicament.  But Judge Black ruled the Ohio law is unconstitutional.

In Judge Black’s view,  the government ought not “decide what the political truth is.”  In his view, “the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and let the voters, not the government decide.” 

But just this week, Ohio Supreme Court Justice Judith Lanzinger

issued an opinion in the case of In re Judicial Campaign Complaint Against O’Toole, and held that “[t]he portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from knowingly or recklessly conveying information about the candidate or the candidate’s opponent that, if true, would be deceiving or misleading to a reasonable person is unconstitutional as a violation of the First Amendment to the United States Constitution.”  But she also noted that “[t]he portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying information concerning the judicial candidate or an opponent knowing the information to be false is not an overbroad restriction on speech and is not unconstitutionally vague.”  

So, in the view of the Ohio Supreme Court, a judicial candidate can “mislead or deceive” a reasonable person, but outright lying remains prohibited. At least as it concerns the speech of judicial candidates, the government may still decide the truth.

Interesting that two respected judges can come to opposing views. And while I understand Judge Black’s sentiment, I have to side with Justice Lanzinger on this one.  First Amendment or not, the idea of the government deciding “what the truth is” is not a completely foreign concept.  A public official is entitled to sue for defamation if he can establish the speaker knew the speech was false, or was reckless about it.  In that instance, the government (i.e. a court) has to decide what the truth is. There are perjury laws in every jurisdiction. Any conviction requires the government to determine the truth. The SEC has the power to regulate speech in the financial world.  In doing so, it determines what the truth is. The Federal Trade Commission handles claims for deceptive advertising. So it determines the truth in that sphere. 

I am not taking off my First Amendment hat here, but I’m not sure I’m willing to accept the notion that the government is completely powerless to stop people from intentionally lying in the course of a political campaign.  If it’s against the law to lie to get me to buy a particular brand of toothpaste, I’m not sure why it’s okay to lie to get my vote. 

And I agree with the notion that truth is the ultimate defense here.  But given the U.S. Supreme Court’s recent campaign finance decisions in Citizens United and  McCutcheon it seems like the truth may get washed out by dollars.  A little oversight may not be the worst thing.