Ohio Case Challenges Law Criminalizing “Lies” In Political Campaign

The New York Times has an interesting article on the continuing debate over whether lies are protected under the first amendment — a debate that we discussed earlier in relation to the Supreme Court’s consideration of the constitutionality of the Stolen Valor Act. Mark W. Miller, however, is fighting this issue in a different context — challenging a law that makes it a crime to lie in a political campaign. I have always viewed these laws as inimical to free speech and contrary to the First Amendment. The Supreme Court could resolve the question in the Alvarez case — or reinforce the ability of states to prosecute people for falsehoods utterly in political campaigns.

Miller, 46, is a mechanical engineer who was opposed to spending money on a streetcar project in Ohio and went to Twitter to encourage people to vote against it. He posted such statements as “15% of Cincinnati’s Fire Dept browned out today to help pay for a streetcar boondoggle. If you think it’s a waste of money, VOTE YES on 48.”

Instead of contesting his figures, supporters of the project filed a complaint under an Ohio law that forbids false statements in political campaigns. Ohio is one of 17 states with such laws. Miller is seeking to strike down the law and Ohio’s attorney general (and former U.S. Senator), Michael DeWine, is opposing the lawsuit on procedural grounds but, to his credit, has questioned the constitutionality of the law. It is an ironic position for the former senator who, like most politicians, has been accused of making false statements to make political points. Nevertheless, DeWine should be credited with declining to argue in favor of an unconstitutional law.

The Ohio law would allow for a six-month sentence — though that it extremely unlikely. It is enough to create a chilling effect on speech, particularly when those in power make decisions on how hard to pursue critics.

Less admirable is the position of the Ohio Election Commission, which dismissed first amendment concerns and cites a Sixth Circuit opinion in Pestrak v. Ohio Election Comm’n, 926 F.2d 573 (6th Cir. 1991), holding that “false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.” See also 281 Care Committee v. Arneson, ___ F.3d ___ (8th Cir. 2012); United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010). I have long argued against this view (here and here). My views are closer to the ruling in Rickert v. Pub. Disclosure Comm’n, which held that “[t]he notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment.”

These laws vividly demonstrate the slippery slope on which the Supreme Court could place the nation. The use of these laws in the political context is the worse case scenario for free speech. It allows the government to not only define what is a lie but what is the truth. If individuals can be prosecuted for “lies,” what about journalists or whistleblowers?

Free speech contains its own disinfectant for lies, which are exposed in the course of open debate. The “solution” to false statements is far worse than the problem. It empowers a governmental truth police which are likely to view many criticisms as untrue. That is why there is so much at stake in the Alvarez decision — far more than the treatment of an absurd liar who bragged about everything from being married to a Mexican starlet to playing for the Detroit Red Wings.

The Ohio case will be interesting to watch, though the decision in Alvarez is likely to come down before any ruling.

Source: NY Times

41 thoughts on “Ohio Case Challenges Law Criminalizing “Lies” In Political Campaign

  1. Let me see… We want to do something…. You don’t like it…. You complain in a media love me twitter…. We want to prosecute you for standing up for that right….. I got it….. Say…WTF with AML….. That’ll make them listen….

  2. These laws vividly demonstrate the slippery slope that the Supreme Court could place the nation. The use of these laws in the political context is the worse case scenario for free speech. It allows the government to not only define what is a lie but what is the truth. If individuals can be prosecuted for “lies,” what about journalists or whistleblowers?

    Another thing targeted to be removed from the voting public, who is lying and who is not.

    It is now an argument about who knows the truth best, government or the public.

    That means thousands of years of data which led to the right to a jury trial is being overturned?

  3. Nothing beats a well turned lie. Without the ability to lie, our politicians would be tongue-tied and political campaigns would degrade to thoughtful debates on important issues. Any law against political lying is clearly un-American regardless of the Constitutional implications.

  4. “The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.”” (from the following article)

    “Is There a Right to Lie?”

    by WILLIAM BENNETT TURNER, February 19, 2012

    http://www.nytimes.com/2012/02/20/opinion/is-there-a-right-to-lie.html

    Excerpt:

    “The public humiliation that follows such exposure is punishment enough. The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.” The court should reject Congress’s attempt to police what we are allowed to say about ourselves.”

  5. it opens the door to frivolous lawsuits as people will start accusing people of telling lies when a speculative statement has been made. why do we have to go to the court system to determine which statements have evidence to back them up and which are untrue? Isn’t that what the internet is for? or perhaps newspapers, the library of congress, or encyclopedias? it’s as if the default is to believe everything one is told, and to do nothing to find out if it is accurate or not. perhaps if people paid attention to the world around them, they’d already know what is what and wouldn’t need a TWEET to tell them who to vote for.

  6. Not all lies are protected. There is such a thing as defamation, libel and slander that are actionable. I do not think we let the government be the arbiter, but I have no problem letting a jury be the arbiter of who has lied and what damage it caused.

    There should be (and I do not think there is) some middle ground for which a political liar can be sued; for example claiming to have been awarded two Purple Hearts when one knows he has not been should be considered a fraudulent claim that has tricked people out of political donations (which can be substantiated) and ultimately their vote (which cannot be, but could be sworn to). A lawsuit should be allowed to punish that.

    I do not think lies should be punished unless damages can be shown, but if clear damages CAN be shown, I think political lying should be treated like fraud. Kerry should have been able to sue the Swift Boaters.

  7. “Free speech contains its own disinfectant for lies, which are exposed in the course of open debate.”

    In your 1st amendment dreams! There have been far too many posts to the contrary in this blog to so naively repeat that mantra.

    For instance, please recall Mike Spindell’s weekend post on the following: http://members.shaw.ca/jeanaltemeyer/drbob/TheAuthoritarians.pdf

    Or check out the following article which is almost two years old:

    http://www.boston.com/bostonglobe/ideas/articles/2010/07/11/how_facts_backfire/

    Excerpt: “Recently, a few political scientists have begun to discover a human tendency deeply discouraging to anyone with faith in the power of information. It’s this: Facts don’t necessarily have the power to change our minds. In fact, quite the opposite. In a series of studies in 2005 and 2006, researchers at the University of Michigan found that when misinformed people, particularly political partisans, were exposed to corrected facts in news stories, they rarely changed their minds. In fact, they often became even more strongly set in their beliefs. Facts, they found, were not curing misinformation. Like an underpowered antibiotic, facts could actually make misinformation even stronger.”

    No, free speech does not necessarily contain its own disinfectant and even if it did, can the disinfectant be applied in a timely manner when the whopper is let loose the day before voting?

    The problem is that in the political arena, every cure seems to be worse than the disease.

    Of course the REAL PROBLEM is the assumption that we are dealing with reasonable people who want to be informed.

  8. Tony C. 1, March 7, 2012 at 9:43 am

    Not all lies are protected … I do not think lies should be punished unless damages can be shown, but if clear damages CAN be shown, I think political lying should be treated like fraud.
    ================================
    Would you consider global warming acceptance or denial to be actionable under that criteria?

  9. Oro,
    Why I share your distaste for political lies, I believe that the best way to stop lying in politics is publicly outing the lies, repeatedly. I understand that there are those who would not change their belief in lies, even with the correct facts staring them in the face, but you will not change them by outlawing political lies.

  10. Just what we need, more laws restricting speech. I agree with Anon Nurse and Tony C, we already have ways to deal with the situation, including strong, public, in-ones-face argument and vilification in response. I too was appalled at the treatment Kerry got from the swift-boaters but damn, he made a pitiable response to it. I think Jack Murtha also got knocked around by the same group, maybe after it reconstituted itself as the Swift Vets organization and went public as a political organization. I could be wrong about that but I link Murtha, Kerry and the Swift* whenever I think of any one of them.

  11. The problem with lies are the people who want to believe them and there are no laws that can fix that.

    If there were, all religions would be known by historical reference only.

  12. “I too was appalled at the treatment Kerry got from the swift-boaters…”

    -Lottakatz

    As was I, Lottakatz. I know one of the swift-boaters — ex-Secret Service, currently running for a seat in the IL Senate, horse’s ass…authoritarian type, Republican….

  13. “The problem with lies are the people who want to believe them and there are no laws that can fix that.” -Blouise

    Ain’t that the truth…

  14. Blouise: “The problem with lies are the people who want to believe them and there are no laws that can fix that.”

    Amen sista’!. But those folks are just looking for a lie, that kind of lie, to believe.The kind of push-back that Rafflaw wants and I advocate is, IMO, for the ‘undecideds’.

  15. Anon Nurse, I know one of the swift-boaters — ex-Secret Service, currently running for a seat in the IL Senate, horse’s ass…authoritarian type, Republican….

    He’s got the perfect personality profile for a member of the IL Senate, or MO Senate. I have seen their likes here’bouts far too long. :-)

  16. lotta and anon nurse,

    I remember an old interview from sometime in the 90’s with John Mellencamp. The interviewer threw an off-hand question at him regarding the small town he lived in … conservative, farmers, heavily religious … the question from the big city interviewer was simple … “You know these people. You grew up with them. You live with them. You say they’re good people. How could they buy into all these (political) lies?”

    Mellencamp thought for a moment, then said, “They don’t lie to each other so they figure nobody would tell them a lie.”

    There is no law that’s going to protect people like that from themselves.

  17. SwM,

    Yes, ain’t that a hoot? Between you and me, I suspect Democratic Party shenanigans … nothing illegal, just registering as Republicans and voting for ol’ Joe. Herman Cain spent a lot of time here campaigning for Joe. It was teabagger heaven.

    Kaptur has been serving since ’83 and she literally tore Dennis a new one. I can’t wait to see what she does with Joe.

  18. “Free speech contains its own disinfectant for lies, which are exposed in the course of open debate.”

    Well-funded liars can overwhelm any amount of disinfectant…..

    I understand the intellectual argument for encouraging – er – allowing lies, but these days there is no effective counter to them.

  19. This issue is great JT.

    It raises the whole realm of consciousness doesn’t it?

    What about politicians commenting on a federal court case during an election:

    Two former senators – one a 9/11 Commissioner, the other the co-chair of the joint Congressional inquiry into 9/11 – state in sworn declarations that the Saudi government backed the 9/11 attack.

    (NY Times). This is a case taking place in a United States District Court, in Manhattan.

    Hell, we can’t have that, it would reveal something wrong with our bond with Saudi Arabia, and our accusing Iraq of having done some part in 9/11.

    And it might cause all hell to break loose if there was a jury trial on the truth or falsity of some knowledge we are not supposed to talk about.

  20. @Dredd: I distinguish between somebody telling an untruth and somebody telling a lie. To be a lie, they have to know for certain beyond a reasonable doubt that it is untrue.

    I think that threshold is met, easily, by somebody claiming to have been awarded a military medal they never received, or somebody claiming they held a military rank they never held, or somebody claiming to have personally done something they never did, or personally abstained from something (like cocaine use) they know they did.

    When it comes to global warming, evolution vs creationism, the necessity of public education, the value of research, the equality of the sexes or races, whether sexual orientation is inborn or chosen, or any other question a person must be convinced of in order to believe one way or another, I think there is an inevitable reasonable doubt: No matter what the facts are, the individual might really believe what they are saying, in which case it is not a lie.

    I believe that others can sincerely believe in the exact opposite of the views I hold, and thereby spread what I consider untruths, bigotry, nonsense pseudo-science, religious claptrap and all sorts of damaging, misleading information without lying.

    There is such a thing as a lie, but it requires an intent to deceive.

  21. raff,

    Mixed bag on abortion but a supporter of Planned Parenthood and female issues. Strong on working class issues. Wants reform of the campaign finance system; championed policies to address economic inequality, and battled against free trade agreements.

    She is the longest-serving woman in the House and serves on the House Appropriations Committee … liberal-to-progressive.

    She was the originator of the World War II Memorial Act and spent several years getting it passed. She did it all in response to a constituent, Roger Durbin who died before it was completed. Kaptur asked his granddaughter to join her on stage at the dedication ceremonies.

    Very anti the Wall Street Bailout and constantly working on the foreclosure issue.

    Here’s an article on her opinions regarding defense

    http://www.politifact.com/ohio/statements/2011/jul/01/marcy-kaptur/rep-marcy-kaptur-says-defense-spending-consumes-mo/

  22. “There is such a thing as a lie, but it requires an intent to deceive.” – Tony C.

    I’m pretty sure that’s what Twain was thinking of when he distinguished lies from damned lies.

  23. @Gene: There’s a Twain quote on a commercial I’ve seen recently, something like, “The more I get to know people, the better I like my dog.”
    :-)

  24. Tony C. 1, March 7, 2012 at 1:13 pm

    @Dredd: I distinguish between somebody telling an untruth and somebody telling a lie. To be a lie, they have to know for certain beyond a reasonable doubt that it is untrue.
    ===============
    I read your entire comment, and it does offer protections that I would also subscribe to.

  25. rafflaw,

    I agree with your comments, which lead me to these three observations.

    Basing economic systems, political processes, and even tort law on the supposed existence of the “reasonable” person acting his own self-interest may be a self-defeating effort. Corporations, which are not people, act more reasonable (from a self-interest point of view) than people.

    Gotta be smart about changing the mind of someone who has already (eagerly?) swallowed the lie, Laying out an objective view of realityt and a logical response to the problem ain’t gonna cut it. See http://www.skepticalscience.com/docs/Debunking_Handbook.pdf

    Third, people are willing to believe the negative more than the positive, which pretty much means negative must be met with negative. So when responding to a lie, don’t be afraid to get down and dirty.

    Will Rogers put it best: View with alarm, point with pride.

    Example: Obama wants higher fuel prices.

    Alarm: Conservative will do anything to defeat Obama, even tanking the economy. High fuel prices will slow economic growth. Part of the run-up to war with Iran is to create instability in the market. Speculation, which Conservatives refuse to regulate, thrives on instability. Gas prices are 15% higher than need be because of Conservative policies. In fact almost all of the fuel price increase this year is nothing but extra profit for the already obscenely rich oil companies and does not reflect any new cost.

    Pride: Domestic oil production at 8 year high, the large number of new leases under administration even though the oil companies have put only a fraction of such leases into production

    Promise: Tap strategic reserves

    (Just writing all that makes me feel icky).

  26. Lotta,
    “He’s got the perfect personality profile for a member of the IL Senate, or MO Senate. I have seen their likes here’bouts far too long. ”

    Are they possibly descendants of crooked riverboat gamblers?

  27. Blouise,
    Thanks for the primer on Kaptur. What do you mean by a mixed bag on Abortion? Is she for a womens right or not?
    Oro,
    You hit on an important issue. The GOP is trying to tank the recovery and gas prices are just part of the plan.

  28. Let me get this straight…

    It is not allowed to lie when promoting your products on television. And the government has been determining the truth in advertising claims for years, and yet the Republic still stands.

    It is not allowed to lie in court, and the government has been determining the truth of statements under oath for years, and the Republic still stands.

    If one lies about another person to their detriment, one can recover damages, and the government has determined the truth of libelous statements for years, and the Republic still stands.

    It is not allowed to lie to the police, the FBI, the IRS and for years the government has decided what is a true and what is a false statement, and the Republic still stands.

    But Zeus forbid we should take the horrendous step to have clean elections -and now the Republic will fall because the government can not be trusted to determine the truth of statement?

    Is that what you are saying?

  29. Blouise and Rafflaw,
    quoting from Alan Grayson’s email of today (see congressmanwithguts.com):
    this is the work of Boehner re-districting, the ugliest of the ugly (see map).
    One hundred miles of beaches connected by a 100 yard long bridge, etc.
    He supported Kucinich, and has spent his efforts in praising him but not disparaging his opponent. Now he eulogizes him. The most amazing to me was Kucinich sponsoring the creation of a Department of Peace.k

  30. Oro and Rafflaw,
    “…tank the recovery…”
    The GOP is trying to tank the nation. only easily steered states will be left.
    feudalism forever. I’ll marry your daughter if you marry mine.

  31. raf,

    I think I could best describe her as evolving. She has voted in favor of some proposals to restrict access to abortion but has opposed others. Back in the 90’s she voted against allowing privately funded abortions at overseas military hospitals but then in 2005 she voted in favor of lifting the ban. Like I said, a mixed bag.

    She was one of the 185 members of Congress who voted against defunding Planned Parenthood on Feb. 18, 2011.

    “The congresswoman’s vote to maintain funding for Planned Parenthood is consistent with her longstanding support for breast and cervical cancer screenings, women’s health services, and family planning in our community,” Steve Fought, a spokesman for Miss Kaptur, said.

    Support for Planned Parenthood is crucial to me when deciding for whom I’m going to vote.

  32. raf,

    She’s the one who advised her constituents facing foreclosure to stay put and demand the bank produce a note. She has a whole set of office staff dedicated to helping constituents with foreclosures..They’ve managed to save quite a few.

  33. Blouise, The better half and I are big DK fans but when this clip played on some evening news/opinion program it was riveting, she made an impression on us. I’m glad to hear she has modified her position on women’s health.

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