When the Supreme Court considered whether to grant cert in Susan B. Anthony List v. Driehaus, the Cato Institute brief nailed the free speech issue, from the critical question of how one determines “fact” in a political context, as well as the inherent chilling effect of criminalizing speech if one guessed wrong. It was never a question of adoring political lies, but the price to be paid for robust political speech.
Now that cert has been granted, Cato’s Ilya Shapiro has filed its amicus curiae brief on the merits, and it may be the best amicus brief ever filed. To wet your whistle, here’s the opening:
“I am not a crook.”
“Read my lips: no new taxes!”
“I did not have sexual relations with that woman.”
“If you like your healthcare plan, you can keep it.”
While George Washington may have been incapable of telling a lie, his successors have not had the same integrity. The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy.
Too lawyer-ish for your tastes? Then try footnote one on for size:
¹ Pursuant to this Court’s Rule 37.3(a), letters of consent from all parties to the filing of this brief have been submitted to the Clerk. Pursuant to this Court’s Rule 37.6, amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici made a monetary contribution its preparation or submission. Also, amici and their counsel, family members, and pets have all won the Congressional Medal of Honor.
And it only gets better from there. As this went flying around the twittersphere yesterday, many will have already read it. But just in case you haven’t, read it. This isn’t a request, but a demand. Read it. Read it now. Just do it.
Rarely does an opportunity to offer such outrageous snark to the Supreme Court to make a point present itself, but that’s the heart of the issue in this case. As the most persuasive means of making a point is showing, not telling, Shapiro (with the inimitable assist of P.J. O’Rourke, former editor of National Lampoon and H.L. Mencken Research Fellow at the Cato Institute) does it with panache.
But this is that rarest of rare instances where such snark is not just appropriate, but monumentally persuasive, in making the point that hyperbole, exaggeration, dubious interpretation and, indeed, truthiness, is a necessary part of our political discourse, and demands the protection of the First Amendment.
In case you’re living under a rock, “truthiness,” coined by Stephen Colbert, means:
a “truth” asserted “from the gut” or because it “feels right,” without regard to evidence or logic.
Without it, most Americans wouldn’t be allowed to discuss any subject at all.