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. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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

  6. 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?

  7. 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?
    You hit on an important issue. The GOP is trying to tank the recovery and gas prices are just part of the plan.

  8. 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?

  9. 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).

  10. 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.

  11. @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.”


  12. “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.

  13. 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


  14. @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.

  15. 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.

  16. “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.

  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.

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