Opinion
Reading Los Angeles: Join The Times' new book club
Opinion Editorial
Editorial

Lying is free speech too

Does the 1st Amendment allow states to make it a criminal offense to disseminate false statements about a political candidate? Should citizens who fear that their free speech will be chilled by such a law be permitted to challenge it even if they aren't in danger of imminent prosecution?

Only the second question will be argued before the Supreme Court on Tuesday, but it is inextricably linked to the first one. If the court rules that the Susan B. Anthony List, an antiabortion group, may not challenge Ohio's criminalization of false political speech, that law and similar ones in other states will remain on the books.

Ohio's law prohibits false statements about a candidate if they are made knowingly or with reckless disregard of whether they might be false. If the Ohio Elections Commission decides the law was violated, it "shall refer" the matter to prosecutors.

During the 2010 election campaign, the Susan B. Anthony List planned to post an ad on billboards accusing then-Rep. Steven Driehaus (D-Ohio) of voting "for taxpayer-funded abortion" when he supported the Affordable Care Act. Driehaus learned about the forthcoming ad and complained to the commission. Fearing legal consequences, the ad agency that owned the billboard space refused to post the ad. A three-member panel of the commission found "probable cause" that the statement was false.

The Susan B. Anthony List tried to challenge the constitutionality of the law, saying that it had the effect of "chilling" political speech, but the U.S. 6th Circuit Court of Appeals wouldn't consider the group's objection. The court reasoned that no "case or controversy" existed because the full elections commission never made a final decision on Driehaus' complaint and because the group couldn't establish that it faced an "imminent threat" of prosecution.

The 6th Circuit's decision should be overturned by the Supreme Court. Citizens who believe that a law chills speech shouldn't have to surmount high legal hurdles to challenge it in court. If the court were to consider the constitutionality of Ohio's law, there are good reasons to believe it would be struck down. In 2012, the justices invalidated a federal law making it a crime for a person to falsely claim to have received military honors. In that decision, Justice Anthony M. Kennedy wrote: "The remedy for speech that is false is speech that is true." That observation is especially applicable to a political campaign.

In extreme cases, a politician who feels his reputation has been besmirched by a false statement may file a civil libel suit. But using criminal law to police truth in political debate is unnecessary and invites abuse. A ruling for the Susan B. Anthony List in this case would be a first step toward recognition of that principle.

Copyright © 2015, Los Angeles Times
Related Content
  • Court ruling shows hazy high school freedom
    Court ruling shows hazy high school freedom

    Almost half a century ago, in a case involving students who wore black armbands to protest the Vietnam War, the Supreme Court proclaimed that schoolchildren don't “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This week the court declined to hear...

  • From antiwar armbands to American flag shirts
    From antiwar armbands to American flag shirts

    This week the U.S. Supreme Court refused to hear the appeal of some California high school students who were ordered to remove or hide shirts showing the American flag.

  • The 1st Amendment and Israeli-Palestinian bus ads
    The 1st Amendment and Israeli-Palestinian bus ads

    The primary purpose of municipal buses is to transport passengers, not to serve as billboards on wheels. But if a transit agency decides to allow issue advertising on its vehicles, it shouldn't be able to pick and choose on the basis of the subject matter. That's what Seattle's transit system did...

  • Can a baker refuse to make an anti-gay cake?
    Can a baker refuse to make an anti-gay cake?

    High school debaters call it a turnaround: when one team manages to redeploy an argument made by the other team right back at them. A beauty of a turnaround is now being wielded by those who say  business owners with religious objections shouldn’t have to do business with same-sex couples.

  • More pressure mounts on Dan Snyder to change the racial epithet that is his NFL team's name
    More pressure mounts on Dan Snyder to change the racial epithet that is his NFL team's name

    So far, Dan Snyder, the unrepentant owner of the Washington Redskins professional football team, has faced down pressure from President Obama, half of the U.S. Senate, some Native Americans and activists, federal trademark authorities and about 40% of players in the National Football League. But...

  • How 'Je suis Charlie' makes matters worse
    How 'Je suis Charlie' makes matters worse

    The public response to the massacre of journalists at Charlie Hebdo has been articulated as a gesture of solidarity: “Je suis Charlie.” It has been chanted by marchers in the Place de la Republique, and repeated on Hollywood stages. It has the appeal of hashtag simplicity and bumper sticker righteousness.

  • What's more important, freedom or safety? Mothering in the shadow of Charlie Hebdo
    What's more important, freedom or safety? Mothering in the shadow of Charlie Hebdo

    Watching the news on the Paris massacre at Charlie Hebdo last week, my son asked, “Mom, what would you say NOW is more important, freedom or safety?” At 17, Theo adamantly supports Hebdo’s right to print irreverent and inflammatory images. But I knew he was referring to more than just the recent...

  • A sign of discrimination in Arizona town
    A sign of discrimination in Arizona town

    A sign posted on or near a public highway is an expression of speech, but it also can pose safety and aesthetic problems. A community should be free to regulate the distraction and clutter created by public signage so long as it doesn't pick and choose on the basis of the signs' content.

Comments
Loading