Why the Supreme Court’s “right to lie” case is not really about the “right to lie”

Today the Supreme Court will hear oral argument in Susan B. Anthony List v. Driehaus.  Because the petitioners are challenging an Ohio law prohibiting false and misleading statements in political campaigns, many have characterized the case as being about a “right to lie.”  Yet such characterizations misrepresent the First Amendment at stake in the case — assuming the Court even reaches the First Amendment question.

Over a dozen states have laws sanctioning “false” political speech. Yet as Michael Carvin and Yaakov Roth of Jones Day explain, the effect of such laws extends beyond demonstrably false statements and threatens to chill political debates on contentious questions.

The issue is not whether campaigns should lie. Of course they should not. Rather, the question is who should decide whether a political campaign advertisement is true—courts, wielding the power to impose fines or imprisonment, or the American people, wielding the power to elect or turf the competing candidate. The stakes for free speech and the democratic process are very high.

People often disagree about what is the “truth,” particularly in the political context. While websites such as PolitiFact purport to fact-check claims by politicians, even it characterizes many statements as “half-true”—one-sided, perhaps, or simply open to reasonable interpretation. The problem with a law prohibiting “false” statements about candidates is that it threatens to chill free political discourse, by silencing speakers who believe they are speaking truth but are fearful of being subjected to burdensome, costly legal proceedings by their political adversaries. . . .

The relevant question is thus not whether there is a constitutional “right to lie,” but rather whether the state may force citizens to defend the “truth” of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.

The premise of the First Amendment is that the people should decide what is “true” and what is “false” in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political “truth.”

Further, if (as the Supreme Court has already held) federal law may not criminalize making false statements about one’s own military record without threatening to chill core protected speech, it’s hard to see how a law focused on political speech would fare better.  Yet it’s unlikely the Court will even reach this question, as the real issues in this case are whether the petitioner’s claim is “ripe” and whether those accused of making false statements may challenge the law before it is actually enforced against them.  As Rick Hasen has noted, the Court is likely to focus on these threshold questions and — if the Court reverses the U.S. Court of Appeals for the Sixth Circuit as Hasen expects — it would remand  the case and avoid reaching the underlying First Amendment question.  Hasen writes:

I believe this case is about ripeness, not the merits of Ohio’s false speech law.

I expect the Court to reverse the Sixth Circuit, perhaps unanimously, and I think that’s the right result. Getting a probable cause determination against someone at the Ohio Elections Commission is a real injury which has serious political consequences.

I expect that the Supreme Court will not reach the merits of the constitutionality of Ohio’s false speech law, either on its face or as applied to the Susan B. Anthony group. That would be left to the lower courts with a possible return trip to the Supreme Court in the future.

 

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

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Eugene Volokh · April 21, 2014