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. 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.

  2. 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. 🙂

  3. 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’.

  4. Gene,

    Way ahead of you. Tex put up a tent in our backyard and calls it our “Panic Room”.

  5. Blouise,

    If you keep making sense like that, the Thought Police are going to get you. 😉

  6. “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…

  7. “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….

  8. 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.

  9. 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.

  10. 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.

  11. 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?

  12. “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.

  13. 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.

  14. 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.

  15. “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.”

  16. 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.

  17. 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?

  18. 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….

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