Could Lying in Political Ads Be a Thing of the Past?

The Supreme Court of the United States has just heard oral arguments in a case that involves an Ohio law that bans lying in political ads — Susan B. Anthony List v. Steven Dreihaus. Now, legal experts believe that the justices will toss the case owing to the fact that the SBAL doesn’t have standing to bring the case. However, the matter does raise the question of whether it’s OK to lie in a political ad. It’s a clash between the First Amendment and an informed electorate.

Adam Serwer at MSNBC explained it this way: “Though it never actually went up, Susan B. Anthony List bought a billboard in 2010 attacking Ohio Democratic Rep. Steven Driehaus’s vote for the Affordable Care Act as a ‘vote for taxpayer funded abortion.’ Susan B. Anthony List’s definition of ‘taxpayer funded abortion’ is misleading.”

You see, public funding for abortions has been outlawed since the 1970s, and the ACA was clear that it was not going to change that. In short, the SBAL lied about the congressman’s vote because it was NOT a vote for taxpayer-funded abortion.

Now, Dreihaus complained to the Ohio Elections Commission, which found that the billboard ran afoul of the law. The complaint has been withdrawn because Dreihaus lost and lost big so there was no point in pursuing it.

Serwer notes, “Susan B. Anthony List though, has every intention of funding more misleading ads against Democrats, and argues that even though there’s no longer a pending case against them, since they fully intend to engage in the kind of campaigning they did in 2010, the Ohio law infringes on their First Amendment rights.”

Now, if the product being sold were detergent and not political candidates, the law would be very clear. You cannot make statements about your product nor those of competitors that are untrue. The people who make Tide detergent cannot say that Gain detergent makes clothes dirtier than before they went in the wash.

But you can lie all you want about a politician. For example, I could run an ad that says Rand Paul was convicted in the Rwandan genocide of murdering 10,000 children, and the First Amendment protects that. For the record, I don’t like Paul much, but he’s totally innocent of genocide, and his absence from Rwanda in the early 1990s can be proved. Yet the only recourse he has under current law is to sue for liable (which will take longer than even an American political campaign, and because the claim is so far out there, I could win by saying it was satire) or raise money to argue that I am lying.

On the right, Justice Scalia likened the situation to “1984’s” Ministry of Truth, and on the left, Justice Breyer said, “Why can’t a person say, you know, there are things I want to say politically, and the Constitution says that the state does not have the right to abridge my speech, and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak; that’s the harm.”

Yet if I want to say Rand Paul murdered kids despite the evidence that proves he didn’t, is there not also harm in that?

The idea behind the First Amendment is to ensure that all opinions are weighed on their merits and that the electorate is well-informed. If something is an opinion, it is hard to say it is a lie. However, when a statement is presented that is demonstrably untrue, that undermines the idea of a well-informed electorate — a misinformed electorate can do itself and the world great damage.

Exactly how you police this and what mechanisms are needed to ensure that only truthful statements are made is well above my pay grade. Deciding when a statement is an opinion and when it is not is also a tricky matter. Of course, if we can do it for detergent, we might at least try it for the fate of the Republic. Which is more important, selecting competent leaders or getting your whites whiter and brights brighter?

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