You solved the problem of lying in politics when you were like six years old. “Just pass a law against telling lies!” dumb little like-six-year-old you said, adorably. But it wasn’t that easy. “No, little you,” said a wise adult. “We have free speech in this country, which means that you can’t stop people from saying things even if they’re not true.” Then maybe the wise adult went on to explain that that’s not entirely true, that sometimes a lie actually can be illegal, in which case it’s called “libel” or “slander” depending on something, you were well beyond listening by then and already had a dozen Legos up your nose as you daydreamed about tort reform.
Well, it turns out that little you was onto something after all. In the coming months, the Supreme Court will hear Susan B. Anthony List v. Dreihaus, in which the anti-abortion group Susan B. Anthony List is suing for its right to sue to put up a big billboard that says “SHAME ON STEVE DREIHAUS! Dreihaus voted FOR taxpayer-funded abortion.” Steve Dreihaus did no such thing, which means this billboard is A Lie and is therefore illegal under Ohio’s awesome False Statements Law. But but but free speech! But but… abortions! Buuuut DEMOCRATS!
Two lower courts have already dismissed Susan B. Anthony List’s complaint (they were not actually charged with any crime, but argue that the law chilled their speech, because their speech was a lie, except they didn’t say that last part). Now the case moves up to the Supreme Court.* How do we expect this case to go, asked your non-legal-expert Wonket, rhetorically?
Badly, of course! But it doesn’t have to! And it shouldn’t, if the conservative wing of the court stands by the views they articulated in a prior case. So, yes, badly.
Dok reminded us of the Supreme Court’s decision in United States v. Alvarez, the case that found the “Stolen Valor” law against lying about military decorations to be unconstitutional. That was a 6-3 decision, with Scalia, Thomas, and Alito dissenting. The majority held that “there has been no clear showing of the necessity of the statute, the necessity required by exacting scrutiny.” Presumably at least a few of these majority justices could be persuaded that elections have more serious consequences than whether Joe Liar really got the Order of the Platinum Turd (for valorous conduct in holding one’s gut), satisfying the “necessity” standard. The real interesting stuff, however, is in the Scalitomas dissent:
“Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value.” … “The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment protection unless their prohibition would chill other expression that falls within the Amendment’s scope. I now turn to that question.” … “in order to prevent the chilling of truthful speech on matters of public concern, we have held that liability for the defamation of a public official or figure requires proof that defamatory statements were made with knowledge or reckless disregard of their falsity.”
OK, looking good! The Ohio law is narrowly drawn to only prohibit lies that are made “knowingly and with intent to affect the outcome of such campaign,” so maybe they wouldn’t chill legitimate speech? But there’s an uh-oh:
“[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat […] it is perilous to permit the state to be the arbiter of truth.”
Tl;dr: The Supreme Court will rule 5-4 that it’s too dangerous to let courts decide whether a lie is a lie, because some people might be deterred from lying.
*Technically the court is only supposed to decide whether SBA List has standing to sue, but we’re confident they’ll wind up banning abortion anyway.
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