Libertarians Urge the Supreme Court to Allow ‘Lies, Insults, and Truthiness’ in Politics

Should telling the truth be a mandatory requirement in electoral politics? The U.S. Supreme Court will tackle that question next month when it hears oral arguments over an Ohio elections law which makes it illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate...if the statement is designed to promote the election, nomination, or defeat of the candidate.”

The case of Susan B. Anthony List v. Driehaus arose in 2010 when the Susan B. Anthony List, a conservative anti-abortion group, purchased billboard ads in Ohio charging incumbent Democratic congressman Steve Driehaus with supporting “tax-payer funded abortion” due to his vote in favor of the Patient Protection and Affordable Care Act. Driehaus not only objected to that characterization, he complained to the Ohio Elections Commission, which soon ruled against the conservative group. The Susan B. Anthony List is now asking the Supreme Court to rule in its favor on First Amendment grounds.

In a provocative and entertaining friend of the court brief recently filed with the U.S. Supreme Court, the libertarian Cato Institute, in collaboration with libertarian satirist P.J. O’Rourke, urges the Court to reject the Ohio law and come down instead on the side of “lies, insults, and truthiness” in politics. Here’s a sample of their argument:

In modern times, “truthiness”—a “truth” asserted “from the gut” or because it “feels right,” without regard to evidence or logic—is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?...

Supporters of Ohio’s law believe that it will somehow stop the lies, insults, and truthiness, raising the level of discourse to that of an Oxford Union debate. Not only does this Pollyannaish hope stand in the face of all political history, it disregards the fact that, in politics, truths are felt as much as they are known. When a red-meat Republican hears “Obama is a socialist,” or a bleeding-heart Democrat hears, “Romney wants to throw old women out in the street,” he is feeling a truth more than thinking one. No government agency can change this fact, and any attempt to do so will stifle important political speech.

All jokes aside, this is a serious issue. As the Cato/O’Rourke brief observes, “It is thus apparently illegal in Ohio for an outraged member of the public to call a politician a Nazi or a Communist.” That sort of language may be offensive and outlandish, but the First Amendment still applies to it.

Related: Reason.tv on "Attack Ads, Circa 1800."

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  • Fist of Etiquette||

    ATTACK WATCH!!!!!!!!!!!!!!

  • Brian||

    Should telling the truth be a mandatory requirement in electoral politics?

    If it does become mandatory, all political commercials will be reduced to the following:

    "Vote for me, bitches! Because...America!"

  • Notorious G.K.C.||

    The fun part of the brief, to me is footnote 15:

    " Driehaus voted for Obamacare, which the Susan B.
    Anthony List said was the equivalent of voting for taxpayer-
    funded abortion. Amici are unsure how true the allegation is
    given that the healthcare law seems to change daily, but it
    certainly isn’t as truthy as calling a mandate a tax."

  • LynchPin1477||

    Supreme Court Justices don't strike me as the kind that would take teasing very well.

  • Notorious G.K.C.||

    Yeah, but I like that they have the brass balls to tell the Justices off.

  • Bubba Jones||

    What is the claim? The politician doesn't actually support it, he just voted for it?

  • Notorious G.K.C.||

    He admittedly voted for it, but he was outraged that his opponents would say the bill funded abortion. He thought that was so clearly false that the speaker should be prosecuted. Because we can be absolutely sure that the Obama administration would never twist the law into supporting abortion funding.

  • Notorious G.K.C.||

    Let's assume, for the sake of discussion, that someone who defames a politician can be sued or prosecuted. The question is whether a politician should be given *more* protection than the average person. If someone defames Joe Schmoe the grocer, his remedy is a civil suit, and in theory (though almost never in practice) a common-law misdemeanor libel prosecution. But if you defame a mamber of the political class, in an attempt to defeat them for re-election, then there's a special criminal statute which can be used against you, and an administrative procedure to give you an extra hassle.

    It's like the law the Supremes struck down which banned racist "fighting words." Assuming for the purpose of argument that fighting words can be banned, singling out cross-burnings and the use of "n_____" and banning them while not banning "S.O.B." or giving someone the bird, is discriminatory.

  • Robert||

    How about this as a serious win-win suggestion: Establish a gov't forum in which official election pronouncements may be made, but they have to be true. Campaigners could still make unofficial statements with no such criterion without penalty.

  • newshutz||

    And we call the agency in charge the "Department of Truth", that should make it clear there are no political shenanigans.

  • ace_m82||

    "Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?"

    Perhaps it is the former conservative I was trying to re-assert itself, but I can only find one of these claims without some supporters in the Democratic party. Anyone care to guess which one?

  • newshutz||

    They don't want their jack-booted thugs to smoke the wacky tobacky?

  • DWC||

    P. J. O'Rourke is a libertarian???

  • ||

    “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate...if the statement is designed to promote the election, nomination, or defeat of the candidate.”

    Don't we already have laws against slander, defamation, and libel?

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