Lying in Political Campaigns and the Judicial Response

September 19, 2014
posted by Bob Bauer

The District Court that struck down Ohio’s false campaign speech statute won few points for craftsmanship.  See Susan B. Anthony List v. Ohio Elections Comm’n, No. 1:10-CV-720, 2014 WL 4472634 (S.D. Ohio Sept. 11, 2014).  In straightforward terms, the court concluded that the government may not police the truth or falsity of political campaign speech. It is an opinion seemingly prepared for a general audience, its sentences plastered in bold type or energetically underlined.  At one point, the court consciously pitches its presentation to a wider lay readership, patiently explaining that “lawyers and courts call [laws like Ohio’s] ‘overbroad’ and hence ‘unconstitutional.’”  Id at *1.  For all this earnestness, Rick Hasen critiqued the Ohio decision as lacking subtlety, and he was joined by Eugene Volokh in this skeptical view of the court’s work.

These reservations are sound on one level but, on another, the merits of the opinion should not go overlooked. There is something to be said for clarity on the fundamental point here: with few and clear exceptions—such as a candidate falsely claiming to be the incumbent—the government should not be invited to make systematic judgments about who is or is not lying in the course of political debates. The Ohio court repeats this several times, much to its credit. It is keeping the key point before the reader, refreshingly eschewing the windiness and showy scholarship laden with thickets of footnotes that is found in too much opinion writing.

Examples from the Ohio court:

  • The answer to false statements in politics is … let the voters, not the government, decide what the political truth is.
  • We’re arguing that we have a right not to have the truth of our political statements be judged by the Government. (Quoting the plaintiffs at oral argument).
  • The state interest is not protecting citizens from personal injuries, but rather paternalistically protecting the citizenry at large from “untruths” identified by Government appointees.

True, the Court does not pay much attention to a 6th circuit opinion, Pestrak v. Ohio Elections Comm’n, 926 F. 2d. 573 (6th Cir. 1991), and it also did not tarry long on the question of which “standard of review” should apply.  The District Court can be forgiven for its slighting of Pestrak. Effectively overthrown by United States v. Alvarez, 132 S.Ct. 2537 (2012) (invalidating the Stolen Valor Act), the Pestrak decision was poorly reasoned: among other faults, it strangely concluded that because Congress and the Executive Branch regularly contest the truth or falsity of claims about policy, it was not all that extraordinary for a government agency to police campaign representations and refer the adjudicated cases of lying for criminal prosecution.  Pestrak at 580.  And a discussion of the standard of review did not in this case, any more than in prior cases, shed light on the fundamental constitutional concern here.

In effect, the Court in Susan B. Anthony chose, and chose well, between two modes of analysis laid out in Alvarez by the Justices voting to invalidate the statute.  Justice Kennedy’s opinion was more categorical than Justice Breyer’s concurrence, a difference reflected in the former’s choice of “strict” over “intermediate” scrutiny.  Kennedy offers his readers statements such as “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”  Alvarez at 2547.  Breyer counters with musings modeled on his conception of Active Liberty—a methodical balancing of government interests and constitutional harms, an analysis of the “on the one hand, but on the other” ilk.  See Stephen Breyer, Active Liberty: Interpreting our Democratic Constitution (2005).  Nowhere in Breyer’s analysis is there a strong statement of the dangers  of conferring on the government a broad responsibility to determine the truth or falsity of campaign speech.

Justice Breyer does concede the risks of regulating false statements in “the political arena,” Alvarez at 2555-56, but his Active Liberty views compel him to adopt restraint in the statement of those risks. He is committed to the proposition that the First Amendment  is a warrant for regulation in the interests of productive democratic “conversation”:

To understand the First Amendment as seeking in significant part to protect active liberty, “participatory self-government,” is to understand it as protecting more than the individual’s modern freedom. It is to understand the amendment as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process.

Stephen Breyer, Active Liberty: Interpreting our Democratic Constitution 46 (2005).

The District Court will have none of this line of reasoning, certainly not as it would apply to political campaign speech; it prefers absolute clarity about the need to hold the line against allowing the government to function as a Ministry of Truth.

The inclination to inch the government into this role seems irrepressible. An example is the increasingly futile but aggravating “stand by your ad” requirement of McCain-Feingold, meant to discourage candidates from associating with negative messages—usually taken to mean false and misleading messages.  It has had no effect on the prevalence of “negative campaigning,” but it has cut into the time available for expensive paid political advertising. And the reform debate continues to be influenced by a view that controlling money would have a salutary effect on speech, discouraging the funding of reckless and false campaign messages that corrupt the choices of voters and produce poor government.

And this is the point that the Eight Circuit stresses in the case of 281 Care Committee, on which the Ohio district court relies, along with Alvarez: that in analyzing the standard of review, or the scope of the government’s interest, in any case involving false speech, it makes a difference if the speech in question is political campaign speech.  281 Care Comm. v. Arneson, No. 13-1229, 2014 WL 4290372 at *5 (8th Cir. Sept. 2, 2014) (the regulation of “political speech [is] the key factor in the instant analysis.”)  That is what the Ohio statute is about—speech directed to voters and intended to influence the outcome of elections, and a relatively comprehensive state statutory scheme for adjudicating its truth or falsity. Here a clear statement of the constitutional problem of government power is warranted, and the Ohio District Court supplied it.

Category: First Amendment

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