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

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