In 2010, the Susan B. Anthony List, a pro-life organization, wanted to put up a billboard advertisement against Rep. Steve Driehaus (D-Ohio) accusing him of voting for “taxpayer-funded abortion.”
The attack was unfair. Driehaus had voted in favor of the Affordable Care Act, which included federal funding for abortions when pregnancies resulted from rape or incest, or when the woman’s life was in danger — which isn’t really controversial. Driehaus was actually among a group of Democrats who supported the bill only after this restriction on abortion was added.
Driehaus filed a complaint with the Ohio Elections Commission, claiming the billboard violated an Ohio ban on knowingly lying or making false statements about a candidate during a political campaign.
He also threatened to take the advertising company to court, so the billboard never went up. But Driehaus lost the election anyway. Meanwhile, the Susan B. Anthony List fought Ohio’s ban on campaign untruths in the state’s lower courts without success.
On Tuesday, however, the Supreme Court heard arguments in an appeal of the organization’s challenge, which insists that the law is an unconstitutional abridgment of free speech.
“Why can’t a person say: There are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them,” Justice Steven Breyer said. “And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That's the harm. Right? So why isn’t that the end of the matter?”
That seems to be the essential question. Does a law against lying in campaigns mean that people will be too afraid to say anything during a political battle?
Jessica Levinson, a professor specializing in election law and governance at Loyola Law School, thinks so.
“This is something that will make people think twice before they make any statement, and that’s something that should make all of us nervous,” Levinson told VICE News. “Certain things are blatant lies, but it’s very disconcerting to get into the business of the government deciding what actually crosses the line.”
Similar laws exist in 16 other states. Levinson accepts that lies in campaigns are a problem, but doesn’t think a statutory solution is necessary.
“Not every issue requires a law,” she said. “In this case, it’s a law that will possibly disincentivize people from speaking.”
Levinson believes that third-party organizations that fact-check statements are sufficient to combat political mendacity.
Brad Smith, who founded the Center for Competitive Politics, agrees. His organization bills itself as “the nation’s largest organization dedicated solely to protecting First Amendment political rights.”
Smith told VICE News that Ohio’s ban “very clearly has a chilling effect on people speaking.” He also believes that the method of determining what amounts to a lie is too vague. “There’s no stated evidentiary standard for making that determination,” he said.
Defining what constitutes a lie is the major issue. Having worked in Ohio, Smith has seen the state’s law cited in petty claims involving smaller campaigns. He said that a candidate who prints bumper stickers that place his or her name alongside “State Representative, 2014” when they’re running for office can be accused of lying because the sticker doesn’t say “for State Representative,” suggesting that the candidate is an incumbent.
Such claims can disrupt campaigns by forcing candidates to address accusations regarding a statement.
Levinson serves on the Los Angeles Ethics Commission, and says that politicians frequently use these commissions to distract voters. But anyone who gets involved during a campaign risks being subject to Ohio’s law. The Susan B. Anthony List wasn’t running for office, after all.
Politicians will continue to lie no matter what, but the government deciding what is and isn’t a lie presents a potentially bigger problem.
The Supreme Court is expected to rule on Ohio’s law within the next several weeks.
Photo via Flickr