Criminalizing Political Speech

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.


22 thoughts on “Criminalizing Political Speech

    1. SHG Post author

      Brandeis’ concurrence in Whitney included some classic rhetoric. Of course, it was still a concurrence:

      In the present case, however, there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed.

      Speech, speech, speech, but damn them evil Wobblies.

      1. Jeff Gamso

        Sure. It’s generally true that the best things Brandeis said were either in dissent (Olmstead) or as in Whitney when he was on the wrong side of an issue.

  1. John Neff

    If the supremes reverse the judge will they provide him with a time machine so he can correct the problem?

  2. justin

    “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.”

    The blunt force to the head isn’t a threat to anyone. The tapping of the club on the table is.

    I have been practicing for 8 years now. I know we must spread our message on the First Amendment. It is some of the most challenging advocacy. It involves teaching people the importance of systems and arenas over the important of more tangible values. (guns bad guns good abortion bad sovereignty of your body good)

    This argument/dilemma reminds me of the hypocrisy of conservatives when they ask for judicial restraint.

    History (seems) to have shown that one of the lasts gasps of terror is the criminalization of things. The People need to step in on this from the legislative side. We can hope for help from SCOTUS. Or, maybe we shouldn’t? I don’t know.

      1. justin

        I read that and I wondered if it came off and some kind of accomplishment or that I needed a Foursquare badge for it.

        I think what I was feeling that well, I’ve only been practicing 8 years, and it seems like the legislative side of the advocacy is more fruitful vs. the judicial advocacy. But, there is beauty in one at a time.

          1. justin

            Always a lesson to be learned.

            Do you have a thinking about whether or not legislation is possible to counteract the holding in Citizens United?

  3. Ryan

    The First Amendment does protect lies that do not constitute fraud or defamation as of United States v. Alvarez, 567 U.S. ___ (2012).

  4. nidefatt

    Your point is likely to be the same one SCOTUS will apply what with Alvarez. I am not entirely sure I agree that the First Amendment blocks providing a punishment for lying in certain situations. Certainly laws being passed at the time our country was founded such as the sedition act of 1789 don’t make one think that the first amendment had the reach we would eventually give it.

    The world has changed since the First Amendment was passed, and the amount of information available has increased to the point where certainty as to the accuracy of that information becomes more and more doubtful. A well-placed lie, such as those published in New York, branding certain individuals as the boston marathon bomber, destroy lives. The media and politicians, and through it certain interested parties, has the ability to twist facts and messages in ways that support various positions. At times, they seem to use bold-faced lies to get what they want, such as Obama claiming we could all keep our healthcare plans (eventually exposed) or the claims of the Swift Boat vets against Kerry (“exposed” but left an indelible impression to the extent that my neighbors still believe it). May the American people under these circumstances decide to pass a law against lies as to objectively ascertainable facts? After all, when we say “more speech is the answer,” certainly a lawsuit will mean more speech, and hopefully under oath. The chilling effect is the cost of such fighting. But a legislature ought to be able to find ways to fix that problem as well, if they were made to consider it (a big if in today’s world, I know).

    In any case, we are in for democracy. Preventing outright lying in political discourse that appears in our rather oppressive media does not strike me as outside the realm of the laws the people may pass. But that being said, Kennedy will certainly side with you, Platonic Guardian that he is, and many of the rest will as well.

      1. nidefatt

        For a guy who claims to find it distressing that the blawgosphere no longer discusses subjects anymore, you certainly don’t seem to do well with dissenting opinions.

        Admittedly, your posting is confusing in that you confront a different issue than what the court granted cert on or from what Cato was arguing, but use their arguments to make your own point.

        But on the subject of your post, that it violates the Constitution to criminalize lying with the intent to change the outcome of a political contest, I disagree. Alvarez is a nuanced opinion, particularly Justice Breyer’s concurrence, which focused on what value pure lies have. I find his opinion a better statement of the law. There are few absolutes, if any, in the constitution, and the First Amendment is certainly not an absolute. The statute at issue in this case comes very close to defamation. The most objectionable aspect of it is that it uses “reckless disregard” rather than “knowingly.”

        In any case, I apologize that I am not as prone to strike down the duly enacted laws of the people of this country as you are.

        1. SHG Post author

          Disagreement wasn’t the problem. I found your comment long but incomprehensible. This comment makes your point far more clearly.

          This case is somewhat different than Alvarez, in that this involves political speech rather than just lies (which you find a far easier thing to determine than I do when it comes to political speech). The problem in this case is that the determination of truth or falsity can be made by one’s political opponents, so those out of control fear criminal sanctions for unpopular political speech. Whether reckless or knowing, the standard is subject to the interpretation of the political regime in power to the detriment of those not in power.

          And defamation is a very different animal than prosecution. I presume you understand why.

          No need to apologize for your appreciation of populism. And I don’t apologize for being unswayed by the tyranny of the majority when it comes to the power to silence those who challenge it by criminalizing their political speech.

          1. Ryan

            The fact that this case involves political speech I think makes it a clearer outcome then Alvarez. Alvarez involved particularly low value speech unrelated in anyway to speech the Court has deemed traditionally protected/valuable speech, like … political speech. Also because there are several Supreme Court cases, such as Gertz and Garrison, where the Court had said in dicta that “there is no constitutional value in false statements of fact.” Gertz, 418 U.S. at 340. With Alvarez, this often quoted line from Gertz should now disappear from filings.

            But, political speech is the animal that matters and “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” Id.

            1. SHG Post author

              Exactly. While Alvarez certainly helps, this is a stronger case due to the nature of the speech involved. And I hasten to add that when it comes to political speech, the “false statements” argument becomes particularly difficult and troubling to determine.

        2. Andrew

          While I understood you disagreed, I was also unable to make any sense of your comment. It struck me that you tried too hard to sound smart and got lost in your own words.

          Then your reaction included this: “Admittedly, your posting is confusing.” You can’t “admit” someone else was confusing. Only yourself. You would do better to try to work on your own clarity instead of being so defensive. If you want to disagree, then at least try to write something that others can understand.

          And as it happens, I tend to agree with you, that there should be a line of falsity that no one is entitled to cross, though I also understand SHG’s point that when the other side gets to decide what is “fact,” it can have a very chilling effect.

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