The Supreme Court granted certiorari in the case of the Susan B. Anthony List, which is quite surprising given its awkward standing issue. It’s also important that it did, as the damage done by an Ohio law criminalizing speech that was false or made in reckless disregard of its truth or falsity is likely to do great harm long before any justiciable “case or controversy” exists.
The Wall Street Journal explains the background:
Ahead of the 2010 midterm elections, an antiabortion group called the Susan B. Anthony List announced plans for a billboard campaign against Rep. Steve Driehaus (D., Ohio) based on his vote for the health care law. They were to read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” But they never were posted after Mr. Driehaus threatened legal action against the billboard company.
Mr. Driehaus lost his race for re-election, however, and dropped his complaint with the elections commission. The district judge then dismissed the Susan B. Anthony List’s lawsuit as moot, among other grounds. The Sixth U.S. Circuit Court of Appeals, in Cincinnati, affirmed that decision in May 2013.
The Susan B. Anthony List appealed to the Supreme Court, arguing that even though it was not convicted under the Ohio false-statement law, the potential for prosecution chilled free speech in the place where it matters most—the political arena.
The List denies that its speech was false, or that it has any intention of making false allegations, which feeds the opposition’s argument that the List then has nothing to fear from the law. Don’t make false political speech claims, and there’s nothing to worry about. Of course, as was the case with Driehaus, the difference between true and false in political speech is point of view. The List insists its intended speech was accurate. Driehaus insists it was false. The Ohio Elections Commission “found probable cause that the Susan B. Anthony List either knew its claim was false or made it with reckless disregard of its accuracy.”
The problem was that the law criminalizing false political speech caused the List to decide not to move forward and risk prosecution and conviction. Not only did this undermine standing, but silenced speech based on its in terrorem effect.
In support of the petition for a writ of cert, the Cato Institute amicus brief forcefully makes the point:
In deciding there was no credible threat that the statute would be enforced against Petitioners, it failed to appreciate the significance of the complaint-driven enforcement mechanism that allows “any person” to initiate mandatory proceedings before a government commission to adjudicate the falsity of a political opponent’s speech.
Contrary to the Sixth Circuit’s reasoning, this mechanism obviously makes it far more likely that the statute will be invoked. In fact, statutes like this are frequently used as weapons in campaign arsenals to silence or distract political opponents in the midst of heated elections. Such practical realities should not be ignored by courts.
What makes this case problematic, like so many political speech cases, is the nature of the speech involved. Like the Skokie case, many will hate the speech, which was anti-abortion and anti-Obamacare. Many will see it as reflecting an extreme political view, and a contrary view to their “truth.” More often than not, bad law arises because of hatred of the views of the party, leaving erstwhile First Amendment supporters on the sidelines as they can’t muster the will to support speech they find so wrong.
When the political winds shift, however, and the teams at bat change, the in terrorem effect of criminalizing political speech will remain if this law is upheld, and everybody will scratch their heads wondering how it’s possible such a horrible law can be used to silence their speech when they’re “right” even though the other side is now in power.
On a superficial level, the supporters of this law contend that the First Amendment doesn’t protect lies. There is no right to lie about one’s political opponents, which is exacerbated by the impact of Citizens United, which could produce well-funded public campaigns creating utterly false characterizations against candidates being opposed. It’s definitely a concern. With enough money and disregard for accuracy, candidates could be falsely smeared beyond recognition to destroy their chances of election.
But as painful as it may be, fact and political perspective don’t always mesh the way more “moderate” minds think they should. People with extreme, even fringe, political views are still entitled to express them. They may not be your view, but contrary to popular belief, other people are not politically constrained by what you think is true, accurate, sound or right. Regardless of how “over the top” we view someone else’s political position, they are entitled to it as we are entitled to ours. Neither has greater moral authority to trump the other.
Yet, what of “facts”? What if the speech goes to an uncontested and uncontestable fact, say that a senator voted “yes” on a bill when in fact he voted “no.” The best answer is that those who support the other side can use such a falsehood affirmatively against their opponent, to show that the other side “lied” and use that the destroy their opponent’s credibility.
To criminalize the possibility, however, isn’t only to put someone in prison for the lie, but to use the threat of prison as a bludgeon to silence them in advance. Whether anyone will, in fact, go to prison for their political falsehood ignores those who never utter their political views because they fear the possibility of being prosecuted for them.
[I]t argues that the First Amendment provides a wide berth for political speech, even if false, in order to protect robust debate.
As the Cato brief puts it:
In the political context, the temptation to abuse statutes like the one at issue for political gain is great and the consequences minimal. It is extremely likely that statutes like this will be employed against political opponents as a matter of course.
No one argues that false political speech is good, but to leave the decision as to what’s true or false upon pain of criminal sanction in the hands of one’s political opponents can only serve to silence political speech. That would be bad for everyone, and no matter how much you disagree with what the Susan B. Anthony List had to say, this is the time to fight for their right to say it, because it’s your right to say what you think at risk here as well.