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."