In a decision that is destined to be misunderstood, Judge Timothy Black last week overturned Ohio’s political “false statement” law. The statute made it a crime, punishable by imprisonment and/or fine, to ““[m]ake a false statement concerning the voting record of a candidate or public official.”” Though largely reported in the media as setback for honest elections, the judge’s decision was in fact a huge victory for free speech.
But surely falsehoods are not constitutionally protected speech? I regret lending the question any degree of legitimacy by answering it, but the abbreviated answer is yes. Our Constitution says that the government can’t censor what it doesn’t want to hear. It doesn’t include any caveats, including statements that are untrue. In 2012, the Supreme Court struck down the Stolen Valor Act which penalized people who misrepresented themselves as the recipients of any US military decoration or medal. So it isn’t true that any statement proven to be manifestly untrue automatically becomes unprotected speech under the Constitution.
Nor do I want to live in a society in which untrue statements can be punished by law. It’s factually incorrect to say, for example, that someone other than nineteen Muslim terrorists perpetrated the 9/11 terrorist attacks, yet it remains legal to propagate all sorts of other theories, most of which involve Jews or Dick Cheney. I wouldn’t have it any other way.
Yet it would be a mistake to get bogged down in a debate about truthfulness in campaign advertising because the case was actually only tangentially related to that. As an attorney for the plaintiff stated before the court, “[We are not] arguing for a right to lie. We are arguing not to have the truth of our political statements be judged by the government.”
The distinction is enormous yet some people either don’t grasp it or pretend that they don’t.
A little context is necessary here. The plaintiff in this case was an organization called the Susan B. Anthony List (SBA List), a pro-life women’s organization. In 2010, the SBA List planned to run billboard advertisements against then-Congressman Steve Driehaus. The billboards were to say: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”
The message was a reference to Driehaus’s vote for the Affordable Care Act (ACA), aka Obamacare. Supporters of the bill, including Driehaus, denied that Obamacare funneled taxpayer dollars into the abortion industry. When he heard about the billboards, the congressman took preemptive action to stop them by filing a formal complaint with the Ohio Election Commission. The three member commission decided by a vote of 2-1 that a crime had likely been committed, in that the billboards misrepresented Driehaus’s voting record.
But did they? Here’s where things get sticky. Obamacare is an intentionally vague piece of legislation that grants enormous power to bureaucrats to make policy, particularly to the Secretary of Health and Human Services. For example, nothing in the ACA specifically stipulates that employer-purchased health plans must include twenty methods of birth control. Why then did Hobby Lobby have to fight for its right not to provide four of them? Because former HHS Secretary Kathleen Sebelius added that requirement after Obamacare had been signed into law using the authority it granted her.
Pro-lifers recognized that Obamacare allowed bureaucrats so much latitude in policy-making that it could be construed to mean virtually anything, including taxpayer-funded abortion. Considering the track record of then-HHS Secretary Sebelius, the darling of the baby-killing industry, it seemed likely that taxpayer-funded abortion would be allowed if not expressly prohibited.
Some of those pro-lifers even supported Obamacare as long as it closed the door to taxpayer-funded abortion coverage. One such supporter was Congressman Bart Stupak (D-MI) who proposed an amendment to the bill which would have stipulated in no uncertain terms that Obamacare funds were not to be spent on abortion. Abortion supporters balked. While still contending that the bill would not fund abortion, they refused to include the Stupak Amendment. It certainly appeared that they were leaving themselves a loophole that could be exploited at a later date by simply having Kathleen Sebelius dictate the policy they wanted.
That’s where the situation stood in 2010 when Steve Driehaus filed his complaint. The SBA List was claiming that a vote for Obamacare was a vote for taxpayer funded abortion and Steve Driehaus was protesting, as politicians nearly do, that the criticism was unfair. Driehaus later lost his reelection bid and dropped his complaint against SBA List but the question was far from settled. SBA List wants to run similar billboards this year against Congresswoman Marcy Kaptur, who also voted for Obamacare.
Four years have passed and the pro-lifers have been vindicated. The “no money for abortion” pledge was just another empty promise that President Obama made to get this piece of garbage legislation passed. In 2012, Planned Parenthood’s best friend, HHS Secretary Kathleen Sebelius, predictably decreed that taxpayer-subsidized plans would have the option of including abortion services, which means that taxpayers will not have the option of footing the bill. SBA List was correct yet the Ohio Election Commission didn’t see it that way in 2010.
In summary, Congressman Driehaus and the SBA List had a disagreement about the de facto effect of a complicated piece of legislation, with Congressman Driehaus asserting one thing and the SBA List asserting another. The State of Ohio took it upon itself to referee to dispute, determine which party was right, and gag the loser.
Ohio’s action set a dangerous precedent by establishing what amounts to a “truth commission,” the end result of which can only be the chilling of political speech, which is exactly what incumbent politicians want. True tyrants could toss opponents in jail for making “false statements” that were in fact truthful but unflattering.
Thank goodness Judge Timothy Black understood this. As he stated in his opinion, “What is certain, however, is that we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the Government might persecute those who criticize it. Instead, in a democracy, the voters should decide.”
The Ohio law mandating “truth” in campaigns was a true menace to free speech because it empowered the government, which is composed of human beings who are both fallible and partisan, to discern absolute truth and to censor those who continue to voice their disagreement.