…Without Breaking the Law?
We all know that lying is bad. But should it be illegal? That’s the crux of a case now before the U.S. Supreme Court. At issue is an Ohio elections law that makes it a crime to “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false.”
In this instance, a pro-life advocacy group published ads claiming that an Ohio congressman supported taxpayer-funded abortions because he had voted for the Affordable Care Act. The congressman claimed that the ads contained false statements about him, and the advocacy group then challenged the constitutionality of the law.
While this could have been just another boring, even if important, case before the Court, it will be hard to characterize it that way after the Cato Institute filed an amicus (friend of the court) brief last month on behalf of the renowned political satirist P.J. O’Rourke.
The brief’s author, Ilya Shapiro, says that he and O’Rourke want to remind the Court “of the important role that ‘truthiness’—facts you feel you in heart, not in your head—plays in American politics, and the importance of satire and spin more broadly.” They ask the Court “a simple yet profound question: Doesn’t the First Amendment’s guarantee of free speech protect one man’s truth even if it happens to be another man’s lie? And who’s to judge—and on what scale—when a statement slides ‘too far’ into the realm of falsehood?”
If you’ve never read a Supreme Court Amicus Brief, you might want to make this your first. You’ll see why it might be considered unusual by the time you get to the first footnote, which ends with:
“[A]mici and their counsel, family members, and pets have all won the Congressional Medal of Honor.”
This obviously false statement reminds us that the Court has already struck down a law that criminalized lying about having earned a military medal.
On page 5, the authors say that
“…the government [isn’t] well-suited for evaluating when a statement crosses the line into falsehood.”
And, they emphasize this point in Footnote 10 which reads,
“Two Pinocchios out of five is OK, but three is illegal?”
Footnote 15 reminds the Justices that it is hard to know how truthful the charge really is of voting for taxpayer-funded abortion just because one voted for ObamaCare, “…given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax” [which the Court did when upholding ObamaCare itself].
The brief makes a case for protecting the right of political satirists and pundits (like O’Rourke) to ply their trade without risk of jail. It states,
“This country has a long and estimable history of pundits and satirists…exposing the exaggerations and prevarications of political rhetoric. Even in the absence of the First Amendment, no government agency could do a better job policing political honesty than the myriad personalities and entities who expose charlatans, mock liars, lambaste arrogance, and unmask truthiness for a living.”
It also points out that, as previous Court decisions have made clear,
“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.”
The entire brief is 24 pages long, and it ends with the admonition that
“Criminalizing political speech is no laughing matter.”
But that’s not to say that you can’t have some good laughs reading this entertaining document. It makes a good case for overturning the law in question. It will also give you strong bones, make your teeth white, and rid your dog of fleas.
Steve Buckstein is Founder, Senior Policy Analyst, and Satirist-in-Residence at Cascade Policy Institute, Oregon’s free market public policy research organization.
