The First Amendment is pretty clear. Government cannot abridge or restrict your freedom of speech or expression. A newspaper, website, or a cable network can, because they control the content. But the government cannot step in and censor you — even if what you’re saying is a baldfaced lie. That’s the gist of a recent ruling surrounding the conservative group The Susan B. Anthony List, a right wing version of Emily’s List which seeks to get progressive pro-choice Democratic women elected. The Susan B. Anthony List is supported to get Republican women elected but instead, they wind up backing traditional rich white Republican menfor office.
This case decided by the Supreme Court filed by the Susan B. Anthony List upholds the right of organizations to overtly lie. And in filing the case, the Susan B. Anthony Group had to admit it lied in a series of billboards about Obamacare and Ohio congressman Steven Driehaus’s alleged support for “taxpayer-funded abortion” under the law — patently false under Federal Law. The group was going to be denied the right to post the speech on billboards under Ohio’s False Statement law. The Supreme Court didn’t rule on the constitutionality of the law, but rather on the standing of the Susan B. Anthony Group to sue.
Conservatives including Justice Antonin Scalia have sardonically dubbed it the “Ministry of Truth” statute.
“The question in this case is whether their preenforcement challenge to that law is justiciable—and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have,” Thomas wrote for the Court.
In 2010, SBA List sought to put up a billboard accusing then-Rep. Steve Driehaus, a Democrat, of supporting taxpayer-funded abortion by voting for Obamacare. Driehaus complained to state officials, saying it ran afoul of the campaign lies law. Although the state didn’t take action, the billboard company refused to put up the ad, which caused SBA List to sue, alleging the law had a chilling effect on its free speech rights.
Here’s the summary from The Daily Beast:
The law makes it a criminal offense to knowingly or recklessly make false statements about a candidate—what ordinary people might call lying. The maximum penalty for making such lies in the context of an Ohio electoral campaign is a fine of $5,000 and six months in prison.
Ask any 5-year-old and, if they’re being honest, they’ll tell you lying is wrong. That doesn’t mean it should be illegal. And it certainly doesn’t mean that criminalizing false speech is constitutional. For this reason, the ACLU and other staunch defenders of the First Amendment filed amici briefs arguing that the Supreme Court should indeed allow the Susan B. Anthony List’s lawsuit to proceed.
To be clear, the Court did not rule as to whether the Ohio False Statement Law is constitutional—it simply ruled that the Susan B. Anthony List has legal justification in suing. And without a doubt, part of the reason that the Susan B. Anthony List has standing is because they lie.
In 2010, the Susan B. Anthony List wanted to run billboards arguing that Democratic Rep. Steven Driehaus had supported “taxpayer-funded abortion” because he voted for Obamacare. This is a flat-out lie. Nothing in the Affordable Care Act could remotely be possibly even a little bit construed as providing taxpayer funding for abortion—because the law, very simply, doesn’t do that. This claim, recklessly tossed about by those on the right, has been roundly dismissed by PolitiFact as false. In fact, there’s already a federal law—on the books since 1976—that prevents federal funds from being used to pay for abortions. Of course this hasn’t stopped anti-abortion activists from insisting otherwise, nor their Republican allies in Congress from introducing legislation that literally does the same thing as the laws already on the books.
It’s certainly not hard to imagine the Ohio law having a chilling effect on free speech and by extension, our democracy—especially in increasingly fast-and-furious electoral campaigns that by nature involve public figures who usually aren’t subject to standard, stringent libel laws. Plus smears and baseless accusations are the fuel of modern politics. That said, perhaps it shouldn’t be illegal to outright lie in a political campaign… but that doesn’t make it right. To even file this lawsuit in the first place, the Susan B. Anthony List had to admit it lied. The lying wasn’t an accident or even a momentary lapse in good judgment. It was conscious and deliberate. The ultimate constitutionality of the Ohio False Statement Law is still up in the air but what’s clear is that a right-wing organization put lying at the center of its campaign strategy—disappointing facts but increasingly unanimously common across the right.
Now if your progressive email box is like mine, your conservative friends are constantly sending you right wing propaganda to prove Obama is evil, his wife hates America and bill Clinton is responsible for 9/11 for not taking Bin Laden into custody when he was President. They also believe Hillary has brain damage from a fall, Bush was never wrong about anything, and Sarah Palin is our only hope.
The ability to deliberately lie and have it passed off as truth now has the support of the Supreme Court. And the decision was unanimous. I’m sure Lee Atwater is doing a happy dance somewhere in Hell for this ruling.