The Supreme Court agreed late last week to hear a First Amendment case involving the government’s threatened prosecution of political speakers who allegedly mislead their listeners.
At issue is Ohio’s “false statement” law, which criminalizes false political speech and empowers the Ohio Elections Commission to determine the truth of the speech and refer offenders to state prosecutors.
The implicit question at issue in the case: should a government agency be empowered to decide political “truth” and prosecute Americans who don’t tow the line?
The case involves the efforts of pro-life advocacy group Susan B. Anthony List to erect billboards in opposition to Ohio Democratic Representative Steve Driehaus’ 2010 reelection campaign. The billboards pointed to Driehaus’ vote in favor of Obamacare, proclaiming “Driehaus voted FOR taxpayer-funded abortion.”
One month before the election, Driehaus filed a “false statement” complaint against the billboards, and a government panel voted 2-1, with the sole Republican dissenting, that there was probable cause the billboards violated the law. The owner of the billboard space refused to put up the ad after Driehaus threatened legal action against them as well.
Susan B. Anthony List argues that the Ohio law “chills” political speech in violation of the First Amendment.
As many might recall, the claim that Obamacare provides taxpayer funding for abortion was a hot political issue in 2010, and the truth of the claim was “open to interpretation,” according to a review of Obamacare “myths and facts” conducted by Kaiser Health News and The Washington Post. Nearly four years after the law’s passage, the abortion-funding question remains contentious.
Driehaus and other Democrats argued that while Obamacare provides federal dollars to purchase insurance plans covering abortion services, insurers may not use those specific federal dollars on abortions themselves. Pro-life groups countered that the provision is simply an accounting gimmick which still results in federal funds indirectly funding abortion procedures. Serving in its role as final arbiter of political truth, the Ohio Elections Commission panel concluded that Driehaus’ version was the “truth,” and the billboard likely featured a legally punishable “lie.”
The problems with partisan government panels determining the truthfulness of political speech should be obvious.
Take President Barack Obama’s now infamous Obamacare claim that ”if you like your health care plan, you can keep it,” named Politifact’s 2013 “Lie of the Year.” The same “lie” was repeated by dozens of vulnerable Democrats and will almost certainly be featured in political advertisements throughout the 2014 cycle. According to the White House though, the “if you like your plan” promise was “technically true,” assuming one is willing to accept a number of significant, never-stated caveats.
Just imagine if Congress were to empower a panel nominated by the Obama administration to criminalize what they view as political falsehoods.
In a rare alliance, the Ohio ACLU filed a brief with the Supreme Court in support of Susan B. Anthony List, arguing that “the people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech and, in any event, the best answer for bad speech is more speech.” Expect the Supreme Court to agree.
