Supreme Court allows challenge to law banning lies in elections
REUTERS
The Supreme Court on Monday allowed a challenge to an Ohio law banning lies in political campaigns to move forward.
WASHINGTON — The Supreme Court on Monday allowed a challenge to an Ohio law banning lies in political campaigns to move forward, ruling that two advocacy groups could challenge a law that makes it a crime to make knowingly or recklessly false statements about candidates that are intended to help elect or defeat them.
Lower courts had dismissed the case, saying the groups seeking to challenge it had not faced imminent harm sufficient to give them standing to sue. Justice Clarence Thomas, writing for the court, said the groups “have alleged a credible threat of enforcement” of the law and so were not barred from pursuing their challenge to it.
The case was brought by Susan B. Anthony List, anantiabortion group, and Coalition Opposed to Additional Spending and Taxes. Both had sought to criticize Steve Driehaus, former representative and a Democrat, in the midst of what turned out to be his unsuccessful 2010 run for reelection to the House.
They asserted that his vote in favor of President Obama’s health care law, the Affordable Care Act, could be interpreted as one “for taxpayer-funded abortion.” The Supreme Court took no position on the truth of that statement.
The justices said Susan B. Anthony List does not have to wait until it is prosecuted under the law to claim its First Amendment rights have been infringed.
The court did not directly rule on the constitutionality of the law, but the decision sends the case back to a lower court to consider the question.
Driehaus filed a complaint against the antiabortion group with the Ohio Elections Commission, which makes preliminary determinations and can recommend criminal prosecutions. It issued a finding of probable cause that the group had violated the law. Driehaus dropped his complaint after he lost the election and before the case had gotten much further.
The Sixth US Circuit Court of Appeals in Cincinnati dismissed the groups’ suit challenging the law, saying they no longer had anything to worry about.
In his opinion reversing that ruling, Thomas said the groups had shown that they intended to repeat their critique of the Affordable Care Act against other candidates and that “the threat of future enforcement of the false statement statute is substantial.” That meant, he said, that their lawsuit could move forward.
Susan B. Anthony List president Marjorie Dannenfelser said the group would move quickly to try to have the law tossed out, saying the truth of political statements should be judged by voters.
Both liberal and conservative groups have criticized the Ohio law, saying it stifles the wide debate that is crucial during elections, including negative speech that may sometimes twist the facts.
Even Ohio attorney general Mike DeWine declined to defend the law in court, citing constitutional concerns. He sent his deputies to argue for the state instead. The law carries a possible penalty of six months in jail.
What will be the outcome of such a law? A blogger, activist or other candidate says X about Joe, then Joe sues them? Imagine the outcome of such a law; Joe can threaten to sue anyone that says anything that seems harmful to him in a court, whether it can be reasonably construed as true or not, just to put the fear of expensive court action in play.
Or, who is sitting around reading the claims of various parties during the election and determining their truth-value? Here’s a law that facilitates political corruption and intimidation by empowering those with such authority to restrict the speech of those they might want not to win under pretense of law.
This simply gives those with money and power another tool by which to threaten and intimidate those who are willing to challenge them with uncomfortable facts or interpretations of their record.
What next? Will all parties have to prescreen their public release materials and speeches, etc., before the Board of Truth?
The OP should be edited to exclude the irrelevant second case.
Damn. If lies were successfully outlawed, there would be no political speech at all.
What about laws regarding truth-in-advertising? Should those also be scrapped?
Menthol cigarettes cure sore throats!
petrushka,
Thanks. I’ve done that.
Absoutely not. I’ve argued before that religious claims should be challengeable just like advertising claims. Why not political claims too? Maybe as a civil tort, though. If I didn’t go to heaven after I died, I should like the right to sue for the loss of my afterlife. 🙂
I made some formatting changes. The opening line is changed into a clickable link, and the wordpress “more” tag was inserted.
I hope walto does not mind.
No I appreciate it. I (obviously) have no html skills. (Sadly, this is true also for nunchuku skills, bow hunting skills, and computer hacking skills).
On first glance, the idea of “truth in politicking” seems good. Unfortunately, that would get the courts involved too deeply in elections.
Even with our absurdly long drawn out election campaigns, the courts act with a glacial speed that would be a serious problem.
I think we are better of with the voluntary media checks on political claims.
As for Truth in Advertising — that’s quite different. We still need that.
These days, I get several telemarketing phone calls per day. They are all illegal (the DO NOT CALL law), and are mostly scams. I don’t see “Truth in Advertising” requirements being applied to these, probably because law enforcement is too difficult. What “Truth in Advertising” does, is give some legitimacy to the businesses that are not scams.
Sure, it would be nice if there were an easy way to do the same in politics, but I don’t see how it could possibly (for politics)
Jones (who is trailing in the polls) does a big media buy right before the election. The main point–Bill Clinton has endorsed Jones for U.S. Senator–and so has Bill Nye!! And it includes a doctored video.
A couple of days later, some curious media member from Arkansas gets to the Clinton team and learns that there was no such endorsement (from Clinton, anyhow). There’s a story about that in the Democrat and Chronicle, which is picked up by the national media a few days after Jones wins the election. Also, since Jones had so much $ the subsequent articles weren’t distributed nearly as widely as the ads.
Politics IS advertising.
Commercial speech can be regulated. Political speech. not.
I cannot think of any substantial thing — particularly promises — made by a politician, that was not a lie.
If elected officials were held to that standard, they would all be in jail.
petrushka, I haven’t seen the Ohio law, but I’m pretty sure it doesn’t apply to promises. I’m guessing it’s about whether somebody was actually Ambassador to Japan last year, or hasn’t taken any PAC donations, or said that Smith was in favor of 3rd term abortions when Smith never said any such thing.
Promises are a whole nother thang.
Or maybe whether someone is part Cherokee? I think you may be terribly naive about how politics works. From the first day of the first political campaign it has all been deception. Sorting it out in court in the midst of a campaign is not possible.
Besides, we have a jury system sorting it out. The voters.
But if we are going to make any part of the campaign illegal, it should be false promises. that is a breach of contract, and we already have processes in place to deal with contracts.
“Sorting it out in court in the midst of a campaign is not possible.”
You may be right about that. But that’s not a reason for striking down a law as unconstitutional. I mean, lots of laws are hard to implement smoothly–especially in a really short period. I’m interested in the principle. Suppose it WERE possible, would you still oppose such a truth-in-advertising law?
The reason the law is unconstitutional is that it makes political speech illegal.
You have already asserted that it is impractical to regulate campaign promises. I’m merely pointing out that the same is true of all political blather.
Who is going to police speech? Really.
There is always one party controlling the government attorneys. who the hell is going to oversee them?
What do you do about the alleged Clinton/Nye endorsment case I described above? Jones is elected (for a six year term!) to the U.S. Senate because of his false campaign ad. Incumbents are almost always re-elected, and the lie that got Jones the seat will be forgotten long before the next election.
If those laws start banning statements about the fundamental nature of human nature and/or of reality, they should be scrapped. That’s because there is no demonstrably true answer to basic human questions.
Actually, I think that an advertiser’s right to say “there is a God” or “there isn’t a God” is protected by the First Amendment. Telling people that a special lead concoction cures cancer is not, because this is something that is simply about the facts, not about whether or not there is a God or capital punishment is wrong.
Truth in advertising is about financial fraud and public safety, not whether Democrats are lying hounds or Republicans dishonest loons. One or the other, or both, may be true, but that’s what elections are about. Financial fraud by politicians (lying about where your political donation goes) is indeed illegal, while being “dishonest” about religion, the nature of reality, or the political process is not, because these are matters that must be debated.
Glen Davidson
I don’t like it, but as I have said, I consider all politicians to be corrupt liars. No exceptions for any individual or any party. so I would do what I always do, which is nothing. Railing against political lies is like commanding the tides to cease.
I found the Ohio law:
3517.21 Infiltration of campaign – false statements in campaign materials – election of candidate.
(A) No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
(1) Serve, or place another person to serve, as an agent or employee in the election campaign organization of a candidate for the purpose of acting to impede the conduct of the candidate’s campaign for nomination or election or of reporting information to the employee’s employer or the agent’s principal without the knowledge of the candidate or the candidate’s organization;
(2) Promise, offer, or give any valuable thing or valuable benefit to any person who is employed by or is an agent of a candidate or a candidate’s election campaign organization for the purpose of influencing the employee or agent with respect to the improper discharge of the employee’s or agent’s campaign duties or to obtain information about the candidate or the candidate’s campaign organization.
(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term “re-elect” when the candidate has never been elected at a primary, general, or special election to the office for which he or she is a candidate;
(2) Make a false statement concerning the formal schooling or training completed or attempted by a candidate; a degree, diploma, certificate, scholarship, grant, award, prize, or honor received, earned, or held by a candidate; or the period of time during which a candidate attended any school, college, community technical school, or institution;
(3) Make a false statement concerning the professional, occupational, or vocational licenses held by a candidate, or concerning any position the candidate held for which the candidate received a salary or wages;
(4) Make a false statement that a candidate or public official has been indicted or convicted of a theft offense, extortion, or other crime involving financial corruption or moral turpitude;
(5) Make a statement that a candidate has been indicted for any crime or has been the subject of a finding by the Ohio elections commission without disclosing the outcome of any legal proceedings resulting from the indictment or finding;
(6) Make a false statement that a candidate or official has a record of treatment or confinement for mental disorder;
(7) Make a false statement that a candidate or official has been subjected to military discipline for criminal misconduct or dishonorably discharged from the armed services;
(8) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a candidate by a person or publication;
(9) Make a false statement concerning the voting record of a candidate or public official;
(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.
As used in this section, “voting record” means the recorded “yes” or “no” vote on a bill, ordinance, resolution, motion, amendment, or confirmation.
(C) Before a prosecution may commence under this section, a complaint shall be filed with the Ohio elections commission under section 3517.153 of the Revised Code. After the complaint is filed, the commission shall proceed in accordance with sections 3517.154 to 3517.157 of the Revised Code.
Effective Date: 08-24-1995
The Clinton/Nye case is small potatoes.
You might recall that CBS News presented a manufactured memo in the Bush presidential campaign.
I happened to have a lot of personal experience with the machine alleged to have produced the document. I edited a little magazine in 1974 that was typeset on the IBM Composer and knew immediately that it could not have produced the document. I used every feature of that machine, including the minicomputer that justified the lines.
So what happens if a news outlet alters the outcome of an election by lying?
The law is unenforceable rubbish. For better or for worse, people vote more on feelings than on facts.
FWIW, If I were an Ohioan, I’d have pressed my legislators to support that law.
The key factor in my opinion is unenforceability. I have no problem with having legal consequences for liable. But in my experience, the kind of last minute lie that changes an election is not something that can be dealt with by law enforcement.
We have recalls to deal with this kind of thing. And recalls are effective when people are really pissed.when
I could see some merit in a law that would allow a candidate to sue for a recall election on the basis of a false campaign ad.
But again, my bias is against prohibition-like laws.
Such laws always invite selective enforcement.
petrushka,
Yes. They’re similar to moderation rules in that regard.
And we all know that having a post moved is functionally equivalent to being imprisoned. Or heavily fined. Or fired.
Or winning/losing an election, either.
petrushka,
Who said it was? My point is that the temptation of selective enforcement is there in both cases.
I like that idea.
But I hope you understand that the politics of enforcement would be fierce.
I think we have elections not because they are perfect, but because their results are temporary.
When Gregory accused me of being an evolutionist, he got it right. I am an evolutionist in nearly all things. I view politics as an exercise in population genetics. I don’t see much point in getting too worked up about rationality when applied to political policies. It’s all a jumble that changes constantly, but not necessarily by design, and not toward any foreseeable goal.
I have personal opinions and preferences, but I try to live by the serenity prayer.
“I try to live by the serenity prayer.”
I’m guessing that beats the serenity pads.
I’m guessing that this is the section that’s being challenged, and I can see why.
Obviously, what’s a “false” statement can depend greatly upon one’s religious or political views, especially where the issue is precisely politics. What’s “true” about a voting record might be vastly different if you’re Marxist rather than libertarian.
The Ministry of Truth and things like it are always bad ideas, since the government ends up judging “the truth” by “its truth.” Freedom of speech has the best odds of letting truth win out (even though it’s hardly perfect), rather than having the government decide “whose truth” will be allowed to prevail.
Glen Davidson
I recognize the downsides of such a law, and don’t mean to downplay them. But I’d still vote for that statute. Some stuff (“Jones never actually graduated from Harvard law school and was convicted of manslaughter in Montana” isn’t that complicated, at least usually. It’s true or it’s not, and it wouldn’t take this ministry of truth many days of careful deliberation to determine it. That’s what the law is for. Would it be subject to abuse? Sure, but so are laws against pretty much everything.
I think it might have been in a book by Heilbroner that I first came across the position that advertising was an absolute bane to the economy and the world. He may have overstated that case (if it really was H. that I’m thinking of), but there’s a grain of truth in there. And when Reagan basically deregulated TV advertising, things got considerably worse than H. (or whoever it was) could have imagined.
Good old Ronnie.
Walto said:
The problem with your scenario here is the assumption that the “Ministry of Truth” isn’t going to lie or aid and abet liars for the benefit of their political class/party. Why would politicians/bureaucrats occupying a seat on the “Ministry of Truth” be any different from the politician blatantly lying about his opponent?
Besides, it’s the 4th Estate’s job to police such falsehoods, even though the mainstream media is largely just part of the political apparatchik.
Umm, yeah, that’s part of the reason a secular humanist society should NOT want to leave “correcting falsehoods” to a commercial media.
Freeze Peachers would say we cannot interfere with their business decisions to cover and/or not cover / distort / politicize any and all stories. Interfering with the free market, with their freedom of speech, their freedom of association ? No, that would be the tyranny which you have so loudly decried already. Right?
But when the 4th estate won’t do their job, and given that we can’t force them to, when the political corruption bought by Koch money is preventing them from telling the truth, the public as a whole still has an interest in keeping the worst of the falsities from being propagated without rebuttal or consequence.
It’s the same public interest which was already mentioned above about product advertising. Every civilized country has Truth in Advertising laws. You can’t tell people (anymore) that cigarettes are good for them; you can’t put labels on your packages of vitamins that lie to people about preventing cancer, etc. Everyone, even the most fanatic Freeze Peacher, accepts that allowing commercial enterprises to make fraudulent claims and fleece the gullible is not ultimately in the best interests of a healthy free society.
There is no excuse for failure of willpower to extend Truth in Advertising laws to political fraud. Political advertising should not be exempt – it’s commercial speech, paid for, and propagated in the narrow interests of the money-grabbing political class. What should be the mechanism for getting rid of at least the worst of the outright lies? I don’t know. Fines by the FCC, mebbe. Paid public service announcements making the kind of corrections which Fox News refuses to make on its own? Mebbe.
No one should ever be “serving” the public by getting elected based on deliberate, paid-for-advertising lies.
Hotshoe said:
I have no idea what you mean by “Freeze Peachers”.
I think it’s rather idealistic and naive to believe that truth in advertising laws have accomplished anything more than to make people believe they can trust a corrupt, false and misleading advertising lexicon based on laws written essentially by industry insiders and lobbyists, tooled with psychological phrasings tweaked to obey the labyrinthine letter of the law while entirely abandoning its spirit.
It’s my opinion that the only thing most laws do is fool the naive and gullible into thinking they’re living in a civilized society of principled laws and enforcement.
Let’s take yogurt, for example. Dannon & Yoplait call their product “yogurt”. It’s not yogurt in any significant sense of the term other than legally. You might as well be eating pudding or ice cream. Dannon now sells a “probiotic” product called “Activia” with a “Bifidus Regularis”… nothing more than a marketing name for a certain strain of live yogurt bacteria.
If Dannon (or Yoplait) made actual yogurt, there would be no need for this special “Activia”, probiotic version of their product. Activia has 5-10 billion CFU (colony forming units, or live beneficial bacteria) per 4 oz. Regular yogurt – what you get when you add live yogurt culture to warm milk and let it set and cool – contains 45 billion CFU per 4 oz serving.
Dannon & Yoplait sell their “yogurt” products as “healthy” alternatives to pudding or ice cream or other snacks, and the fact is that they are must another kind of junk food. There are no live cultures in either product. No health benefits whatsoever (as far as the “yogurt” goes). :But watch their ads. They obey the letter of the law, I’m sure. But most people are still fooled into thinking that these products are healthier than pudding or ice cream.
I managed a drug store for a long time. I can also tell you about the “truth in advertising” when it comes to drugs and medications. I managed a grocery store for a while – I can also tell you about other “truth in advertising” scams of many products.
Basically, all such laws do is codify and centralize the corruption process in a way that those who do not pony up the grift through the right channels, one way or another, can get squeezed out. The have institutionalized the scam, applied the impritur of law, and in so doing have a willingly complacent and naive populace who think the government has their best interests at heart. After all, it’s against the law to lie in an advertisement, right?
ROFL
William, even the great Saint Ronnie thought there should be laws against selling “poison meat”!
Seriously, though, as bad as your drugstore no doubt was, compare it to the traveling unguent sellers of the old West. The problems you describe above are a result of too much advertising and too little regulation–not the reverse! The reason that there’s still so much crap sold as medicine (or yogurt) is that the companies selling the crap fight so hard to prevent anybody from making them do the right thing. Instead of joining with the crapmeisters, you should help decent people fight them.
Edit: Oh, and by “freeze peachers” (the extremely eloquent) hotshoe means “free speechers.”
Thank-you for the tip. I see there’s lots of info on the web about making your own yoghurt. With the help of mon épouse, I shall be experimenting and reporting back!
Indeed!
There’s only one real yogurt (that I know of) on the market in the USA.
http://www.whitemountainfoods.com/YogurtProductPage.html
Only 2 ingredients: milk & culture. They even tell you on the website how to use their yogurt as starter culture and make your own at home: http://www.whitemountainfoods.com/HomeMadeYogurt.html
They also have a map system to find stores that sell their products near you.
EDIT: Which won’t help if you live outside of the USA. But, it’s an example of how ludicrous the system is when a simple 2-ingredient health food like yogurt gets through the crony capitalism bureaucratic system: something that is a cross between pudding and ice cream with almost zero health benefits can call itself “yogurt”, and then the actual healthy aspect of yogurt gets repackaged and re-sold as some kind of hard to get essential health commodity called a “probiotic”, and offered up in pill or supplement form.
As far as I’m concerned, the FDA and the USDA are just enforcers for corporate mafias.
The snag is the Atlantic Ocean. However this product and many similar are available. Note the two (and only two) ingredients: sheep’s milk and bacterial culture.
Well, it’s the corporations that finance politicians who are then obliged to return favours. Commercial boycotts have been effective against the most egregious offenders. When Monsanto tried to force GM products on the European market, the customer resistance has been enough to largely keep it at bay. Note that I am not against GM per se but the stranglehold it would have given Monsanto over small farmers is to be avoided.
http://www.acluohio.org/issue-information/aclu-opposes-false-political-speech-law
Pretty much on the same basis upon which I wrote, but authority is what really drives political “thought,” so I thought I’d find an authority rather than pretend that making sense works.
Glen Davidson
I just visited the ACLU link posted above: http://www.acluohio.org/issue-information/aclu-opposes-false-political-speech-law I didn’t like this line from their article on the matter: We do not share SBA List’s views on reproductive freedom, but we will continue to defend its right to express those views without interference from the government.
That seems to me a misstatement of the issue at hand. Nobody is attacking SBA’s right to express its views on reproductive freedom. I’m pretty sure everybody agrees they’ve got or ought to have THAT. What’s at issue is SBA’s right to express clear falsehoods (assuming that’s what they are) about other people’s views on the matter.
Alan said:
It’s not just corporations. Unions do the same thing, as do the individually wealthy. Probably the worst of the lot is public sector unions, where taxpayer money is first funneled to public employee salaries, whom are force to pay union fees in many states regardless of whether or not they are members and regardless of if they even want to support the political positions of the union; the union then uses those funds to get their candidates elected, who then sit across from those same union bosses when it comes time for new collective bargaining agreements. Unions have become worse than corporations when it comes to political corruption.
walto,
The ACLU’s point is that the government shouldn’t be making that determination when it comes to political speech. Here’s the statement in context:
I left out that first paragraph because it’s not really relevant The case has nothing to do with criticizing public officials at all. The SBA is not a public entity.
walto,
Sure it does. Driehaus was a congressman. The ACLU is defending the SBA List’s right to criticize a public official.
Yeah, you’re right. I see the relevance of that paragraph now.
As indicated above, however, I don’t agree with the ACLU’s position on this matter. I’d support the Ohio law–though I take petrushka’s point about how it might best be implemented.
My point also.
I am a real cynic. I think government is the last entity I would trust to determine truth in any of the possible meanings of that word.
Elections are a bit like thermostats. They “hunt” or oscillate about optimums, never finding or settling on anything that is optimal. As someone has said, democracy is the worst form of government, except for all the alternatives.
Something similar can be said about juries. They make mistakes in individual cases, but they are better than the alternatives.
petrushka,
petrushka, I work for an Insurance Division in state government, regulating insurance companies for a living. I can tell you that without us gubmint boobocrats turning down horrific filings all over the country on a daily basis, you’d be getting skinned a whole lot worse than you are now. Governments (i.e, courts, regulators, etc.) may be the last entity you’d trust to suss out truths. but, shitty as we are, we’re all you’ve got, and if you think the libertarians are right that your life would be better without us, well….somebody has some bridges (and some insurance coverages) to sell you.