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 Day 19

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Punishing False Statements

Mendacity, Elections and the First Amendment

by BINOY KAMPMARK

The jewel within the operation of free speech is its permissiveness towards the unwise, the vicious and occasionally, the down right dastardly. Rights are not necessarily exercised by the virtuous; and it is fair to say that notions of virtue in the political arena tend to come across as antiquated expressions of the ideal. When it comes to political campaigning and the necessity for truth, we are on treacherously slippery ground. Saintly figures rarely need to resort to the free speech amendment.

On Monday, the US Supreme Court ruled by a thumping margin of 9-0 that an anti-abortion advocacy group, Susan B. Anthony List, could challenge an Ohio statute prohibiting the making of “false statements” during an election campaign. The sting in the tail of the statute is its enforcement measure: compelling the maker of such statements to appear before a state commission and face potential criminal charges.

The anti-abortion group had proven to be as purely true as driven slush, waging an incessant campaign against then Ohio-Rep. Steven Driehaus (D) who was seeking re-election in 2010. Part of its approach included placing advertisements on billboards in Driehaus’s electorate making short and sharp statements. “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” (They need not have bothered – Driehaus lost his re-election bid.)

The nub of contention here by the SBA List group was Driehaus’s vote for the Patient Protection and Affordable Care Act. That act was sufficient, in the eyes of the group, to implicate the representative in supporting “tax-payer funded abortion.” Driehaus and supporters of the act were proved indignant against the claims – the SBA List group had gotten their facts wrong.

Driehaus was riled enough by the allegations to take the matter to the Ohio Elections Commission. His argument was that SBA List’s billboards would violate the prohibition on making false statements during election campaigns. His lawyer also sent a firmly worded letter to the billboard company, warning it about the consequences of going through with running the advertisements. A commission panel voted 2 to 1 finding probable cause that the advertisements would violate the law.

The usual legal acrobatics ensued, with the Supreme Court overruling the decision to reject the claim made by SBA List in the lower courts on First Amendment grounds. Back in April, Justice Anthony Kennedy suggested that there’s “a serous First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say” (AP, April 22).

According to Justice Clarence Thomas, “Denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.”

The advocacy group had convinced the justices that future enforcement could well arise in future. Again, in Thomas’s words, “the spectre of enforcement is so substantial that the owner of the billboard refused to display SBA’s message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from ‘imaginary or speculative’.”

Legislative interventions in the realm of dishonesty are always imperfect. Proving the mental state of fraud is a tall order for those alleging the case. But doing so in a political context, over notions of what constitutes a dishonest representation over a fact, can be nigh impossible. Politics tends to court deception, and the eternal dilemma of its practitioners is how best to avert that. Failures, in that regard, tend to be greater than successes.

The election process is particularly susceptible to this. If poetry be the food of campaigns, then it is a food that seduces rather than enlightens. It is also scoffed at choking speed. As the attorney for SBA List, Michael Carvin explained, election speech “has an extraordinarily short shelf-life.” In other words, a group charged with violating the false speech statute might never be able to go through the procedure of accusation, assessment and exoneration before the end of an election.

Promises made in the realm of campaigning are promises to be broken. Undertakings made about fictitious job figures, growth figures and economic health tend to be matters for cunning astrologists rather than the pure dictates of the honesty squad. If such laws punishing deception in politics were effective, we might well have no representatives left to be deceived by, or convincing political groups. (Not, perhaps, the worst state of affairs, but to be mindful of.) An electoral campaign might as well be a lengthy tissue of lies in action.

The Supreme Court, despite showing a considerable dislike for civil liberties of late, has, at least, considered the prospect that a law targeting falseness in campaigning may fall foul of the First Amendment. This may well place similar laws in 15 states at risk.

Such a law is unlikely to deter mendacity, but it is bound to encourage the management teams of political campaigns to tell the truth in circuit. There will always be liars on all sides of politics, and ethical execration rather than legal punishment may be the best antidote.

Adlai E. Stevenson’s threat to the GOP comes to mind: “If the Republicans will stop telling lies about the Democrats, we will stop telling the truth about them.” In such a political economy, stocks tend to depreciate rather than rise, unless you have a knack for rating lies. The only thing left in that ghastly diminution is the value of the free speech amendment, ever imperfect, yes, but ever important.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com