Supreme Court to tackle gov’t fact-checking in political ads today

posted at 10:01 am on April 22, 2014 by Ed Morrissey

Do laws against telling falsehoods in political ads chill free political speech? The Supreme Court will take up that question today, hearing oral arguments in Susan B. Anthony List v. Steven Driehaus. Dreihaus, a former one-term Congressman from Ohio, filed a complaint against SBA List over billboards that he claimed misrepresented his position on abortion in relation to his support for ObamaCare. A state commission subcommittee referred the matter to the full panel for action, at which point SBA List sued Ohio over the law itself. Today, the court will take under consideration a number of issues, including whether SBA List has standing to challenge the law any longer:

The Supreme Court will consider Tuesday whether two conservative groups can pursue a free-speech challenge to an Ohio false-statements law that if allowed would advance a broader push against state laws making it illegal to lie about a political candidate or ballot initiative.

Although Ohio’s elections commission rarely refers complaints over false statements for prosecution, the conservative groups, including the antiabortion organization Susan B. Anthony List, said the law discouraged them from running advertisements against a Democratic congressman.

“It almost never comes to a criminal prosecution, but that doesn’t mean there’s no chilling effect on speech,” Daniel Tokaji, a law professor at Ohio State University who isn’t involved in the case, said of the law.

More than a dozen other states have laws authorizing criminal or civil penalties for spreading falsehoods in political campaigns. The Supreme Court’s eventual ruling, expected by June, is unlikely to affect the state laws or political discourse in the current elections cycle. The case would instead likely be sent back for lower courts to consider whether the false-statement law violates the First Amendment by improperly suppressing protected speech.

Lyle Denniston of SCOTUSBlog writes that the biggest struggle for the court will be to refrain from overreaching:

In all of the history of the First Amendment, the Court has never ruled that false statements are totally without protection under the Constitution.  It made the point again (although in a somewhat uncertain ruling that lacked a clear majority) in the decision two years ago in United States v. Alvarez, which took most of the punch out of a federal law making it a federal crime to falsely claim that one had received a military medal.  That, too, involved political speech.

But if a group or an individual wants to challenge a law that outlaws speech, how and when is it allowed to go to court to claim the protection of the First Amendment?  That is the issue the Court faces next week, in the first case to reach it in which opposition to the new federal health care law became a campaign issue. …

One of the main tasks facing the Justices as they take up this case will be to discipline themselves to keep their attention focused on the questions they have actually agreed to decide:  that is, how and when may a court case go forward against a law that aims at limiting expression protected by the First Amendment.

That is a constitutional issue, to be sure, based on how the Justices interpret — in the political rhetoric context – the Article III limitations on the power of federal courts.  But so much of what has been said in the briefing in this case is about the merits of the Ohio truth-in-politics law that this constitutional question may thrust itself front and center.

Will the Court, if it shares the concern expressed here about supposed bureaucratic meddling in the heat of an election campaign, be driven to assure the continuation of a lawsuit designed to stop that meddling?  In other words, what role — if any — does the potential invalidity of a law play in deciding whether Article III allows it to be challenged in federal court?  Should the courthouse door stand more widely open for a challenge that, at the very outset, seems more meritorious in the end?

This is a Court with a committed majority in favor of enlarging First Amendment rights in general, and in political expression in particular.  But it is also a Court that has shown a decided tendency to scale back on access to the federal courts, by taking a fairly stringent view of what Article III demands.  If there is a tension there, how will this Court deal with it?

One way to deal with it would be to address the core issue while leaving the rest alone. That might be unsatisfactory to those looking for more clarity on Article III access issues, but a direct decision on the merits would at least provide a sotto voce endorsement for standing on behalf of those intimidated out of the political debate, rather than just provide legal standing to those willing to endure an oppressive exercise of state power against speech. After all, that’s what the First Amendment is supposed to prevent, with the implicit understanding that the issue at hand is just as much the intimidation of people into silence as it is the explicit punishment of dissent.

If the court chooses to go after the main issue, then the forum may be unusually entertaining:

But it was a humor- and satire-laden brief filed by the Cato Institute’s Ilya Shapiro and humorist (and former National Lampoon editor) P.J. O’Rourke that made waves in legal circles.

“Can a state government criminalize political statements that are less than 100% truthful?” they asked in their 24-page brief. And as an original source on the idea of “truthiness,” they cited the early comedic work of TV personality Stephen Colbert.

“In modern times, ‘truthiness’—a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic —is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it,” the brief says, crediting Colbert has the father of “truthiness” in a footnote. …

And while there is some debate about Colbert as the first person to use the word, a sketch about “truthiness” was part of the successful pilot episode of the Colbert Report back in October 2005.

It’s more likely that the Supreme Court will order the district court to hear arguments on the First Amendment claim by restoring standing to SBA List than it will be to decide the issues itself. However, the case would inevitably work its way back to the Supreme Court, and if they reach a consensus on the dangers of government fact checks on political ads, they may see their way clear to rolling them all back — in Ohio and elsewhere — earlier rather than later.

The court will hear another case today, ABC v Aereo, which may have some impact on the delivery of televised entertainment:

Three decades later, the court is once again considering whether a new technology — one that relies on cloud computing to store programming — violates the Copyright Act. And as in decades past, there are parties on both sides warning of the huge economic consequences that could come from the court’s ruling.

On Tuesday, the court considers those arguments in ABC, Inc. v. Aereo, Inc.

Since 2012, the startup company Aereo has given consumers a new way to watch or record over-the-air broadcast television. Typically, a consumer must have an antenna to pick up broadcast signals or a subscription to cable or satellite services. Aereo, by contrast, assigns its users an individual, remote antenna to pick up a signal so they can watch a program over the Internet — or record a program to their remote DVR storage space and watch it later.

Broadcast companies, including CBS, have balked at this technology, arguing that Aereo’s service is more akin to a cable subscription than it is to a DVR service. “Aereo isn’t just in the business of providing hardware. They’re selling a service,” Neal Katyal, former U.S. Solicitor General and an adviser to major broadcasters in this case, told CBS News Radio.

By that logic, Aereo should have to pay the same fees that cable companies do to retransmit network shows. Cable and satellite companies must pay retransmission fees because under the Copyright Act, only the owner of copyrighted content has the right to air a “public performance” of the content in question.

Aereo, meanwhile, argues that it isn’t airing “public performances.” By assigning each subscriber a personal antenna each time he or she logs on, the company says it is enabling many private performances, it says. The company is relying on the precedent set in the 2008 Cablevision case, in which a federal appeals court said that remote DVR storage systems don’t infringe on copyright protections.

This case looks much more ripe for a decision on the merits. One CBS analyst explains why Aereo will probably not fare well today:

Congressional action and intent will play a significant role in the deliberations, and ABC’s position fits with that legislative precedent. That may have some impact on cloud computing in general, but it seems more likely that the decision will get limited to rebroadcasts. If the decision overreaches, then Congress can fix that legislatively — just as they did 30 years ago.

Update: If the Supreme Court wants to take action today, how about restoring the SCOTUSBlog press credential? (h/t Instapundit)


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Does anyone really expect this SCOTUS to get this right?

vnvet on April 22, 2014 at 10:06 AM

Lefty justices think the state should determine fact from fiction and suppress your speech accordingly? Of course they do.

Because our Founders wanted out freedoms beholden to the whims of a handful of jackwads in black robes.

gwelf on April 22, 2014 at 10:08 AM

Does anyone really expect this SCOTUS to get this right? Bishop!

vnvet on April 22, 2014 at 10:06 AM

BigAlSouth on April 22, 2014 at 10:09 AM

Conservative groups allege that the healthcare bill funds abortion by allowing Americans to buy into government subsidized healthcare exchanges in which abortion is covered.

Allowing? I doubt that’s exactly what conservative groups are alleging. Maybe journalists should be prosecuted for lying.

forest on April 22, 2014 at 10:10 AM

So we can throw Dear Liar in prison for “If you like your health care plan you can keep your health care plan?”

Dreihaus, a former one-term Congressman from Ohio, filed a complaint against SBA List over billboards that he claimed misrepresented his position on abortion in relation to his support for ObamaCare.

There was no misrepresentation. Dear Liar, via executive order, vitiated the “no taxpayer funded abortion” part of Obamacare. And we knew about it beforehand.

rbj on April 22, 2014 at 10:11 AM

What about subjective TRUTH vs. objective TRUTH?

jake-the-goose on April 22, 2014 at 10:12 AM

Does anyone really expect this SCOTUS to get this right?

vnvet on April 22, 2014 at 10:06 AM

I don’t think it matters much what SCOTUS says anymore. If it’s inconvenient for the Regime, it’ll be ignored.

forest on April 22, 2014 at 10:12 AM

I don’t think it matters much what SCOTUS says anymore. If it’s inconvenient for the Regime, it’ll be ignored.

forest on April 22, 2014 at 10:12 AM

Wow – incredibly true – and incredibly tragic

Bizarro-World

jake-the-goose on April 22, 2014 at 10:15 AM

Free speech is sacred in this country. At least it used to be. Let the buyer beware. Trust but verify.

crankyoldlady on April 22, 2014 at 10:18 AM

I don’t think it matters much what SCOTUS says anymore. If it’s inconvenient for the Regime, it’ll be ignored.

forest on April 22, 2014 at 10:12 AM

Yup, just the same way they treat Biden.

Difficultas_Est_Imperium on April 22, 2014 at 10:28 AM

I was appalled back in 2008 when the DA and County Atty in St. Louis announced they would prosecute anyone who told lies about Obama based on some obscure old law.

Blake on April 22, 2014 at 10:31 AM

Why did Congress pass a law restricting access to public airwaves?

NotCoach on April 22, 2014 at 10:39 AM

As we see all the time from media “fact checkers”, what is and is not “true” is subject to very biased prejudices.

The idea of the gov’t deciding what is “true” in a political ad is ludicrous, considering how often politicians lie to us in general.

If it is a crime to lie during a campaign, why isn’t Obama in jail already? Nothing the man said during either of his campaigns was remotely true by any objective standard.

Monkeytoe on April 22, 2014 at 10:42 AM

The donks have managed to corrupt every independent agency and now they are tools for them to use against their political enemies. Look at the freakin’ IRS. What joke!

Blake on April 22, 2014 at 10:51 AM

Hilarious.

The moral, intelligent, serious republicans – the party who claims facts, truth, logic are all on the side of their policies – are suing for the right to lie unconditionally.

And you, their minions, will defend them in their pursuit.

So hilariously twisted.

everdiso on April 22, 2014 at 11:24 AM

It wouldn’t be judges determining what is true and what you are allowed to say; it would be Orwell’s Ministry of Truth. We have the bureaucrats, all we need is a President with a pen and a phone.

Fenris on April 22, 2014 at 11:31 AM

No, it would be citizens who have proof of lies being able to hold the liars to account legally.

You guys are insane.

everdiso on April 22, 2014 at 11:33 AM

Hilarious.

The moral, intelligent, serious republicans – the party who claims facts, truth, logic are all on the side of their policies – are suing for the right to lie unconditionally.

And you, their minions, will defend them in their pursuit.

So hilariously twisted.

everdiso on April 22, 2014 at 11:24 AM

The SBA list criticized this Dreihaus guy (via billboard) by saying his vote for the healthcare bill is a support for abortion because, you know, the bill does support abortion. And he says he was misrepresented. So actually, what they’re suing for is the right to tell the truth.

Fenris on April 22, 2014 at 11:36 AM

Hilarious.

The moral, intelligent, serious republicans – the party who claims facts, truth, logic are all on the side of their policies – are suing for the right to lie unconditionally.

And you, their minions, will defend them in their pursuit.

So hilariously twisted.

everdiso on April 22, 2014 at 11:24 AM

No, it would be citizens who have proof of lies being able to hold the liars to account legally.

You guys are insane.

everdiso on April 22, 2014 at 11:33 AM

And who decides who the liars are?

Your understanding of liberty is severely lacking. And if I were a leftist fascist like yourself I might call it criminal.

Some lite reading for you concerning our first real presidential campaign and what the two sides were saying and doing to each other:

Inside America’s first dirty presidential campaign, 1796 style

NotCoach on April 22, 2014 at 11:44 AM

One important sidelight is that the whiny Dem who brought this suit lost his seat to GOP Steve Chabot. And thanks to the GOP taking both houses in Ohio’s legislature in 2010 that district got refashioned so that Chabot and successors would have fewer problems overcoming the Cincinnati downtown and UC-area bohemian vote. The gerrymandering moved me from Wenstrup’s district to Chabot–and I ain’t voting for an Dem. I’m not sure what Driehaus is up to, but his sister is a state rep whom Dems seem to want to groom for something bigger down the road. All the same, it was delicious to see Driehaus go down in flames in 2010 after that Obamacare vote.

BuckeyeSam on April 22, 2014 at 11:58 AM

Are we about to be told by SCOTUS that lies are free speech?

BobMbx on April 22, 2014 at 11:58 AM

Allowing government to determine “truth” is a frightening prospect. On the other hand, politicians can get away with anything under the current protections from slander and libel (andeven fraud) they enjoy. Wouldn’t a real First Amendment solution be to simply return politicians to the normal libel/slander and fraud rules?

Otherwise, how do you hold an incumbent, in particular, accountable for untruths he tells. Especially since he is a government agent at the time he tells them? (I’m talking material misrepresentations, not hyperbole – and there’s part of the problem.)

GWB on April 22, 2014 at 12:00 PM

Nothing the man said during either of his campaigns was remotely true by any objective standard.

Monkeytoe on April 22, 2014 at 10:42 AM

Skyrocketing energy costs come to mind…..

BobMbx on April 22, 2014 at 12:01 PM

Are we about to be told by SCOTUS that lies are free speech?

BobMbx on April 22, 2014 at 11:58 AM

Hopefully we are about to be told by the SCOTUS that we already have libel and slander laws, and that more government telling us what we’re allowed to say isn’t needed.

Fenris on April 22, 2014 at 12:03 PM

GWB on April 22, 2014 at 12:00 PM

We’ll let everdiso explain to us how we prosecute Obama for his daily lying.

NotCoach on April 22, 2014 at 12:06 PM

Hopefully we are about to be told by the SCOTUS that we already have libel and slander laws, and that more government telling us what we’re allowed to say isn’t needed.

Fenris on April 22, 2014 at 12:03 PM

Except that isn’t really true. Politicians are generally exempt from slander/libel laws except in extreme circumstances. I don’t think they should be treated any differently than any other citizen.

GWB on April 22, 2014 at 12:10 PM

Except that isn’t really true. Politicians are generally exempt from slander/libel laws except in extreme circumstances. I don’t think they should be treated any differently than any other citizen.

GWB on April 22, 2014 at 12:10 PM

Yes, public figures do have a higher standard to prove that they were slandered. I agree that’s how it should be. I’m not sure what you’re saying isn’t true.

This is actually an example of what we’re talking about: what is true. I say the laws do apply to them; you say they don’t. You’re wrong! ;)

Fenris on April 22, 2014 at 12:17 PM

Sorry about this off topic, but I’ve been away for a week. Has HA initiated a new advertising policy that has automatic audio-on for all/most ads??? Is it something I can control on my end? I have to view the blogs with the sound off.

theFantom on April 22, 2014 at 1:00 PM

Actually, I’d like to see outright lies banned in campaigns. I am pretty hard right on the political spectrum but I believe a candidate ought to have to prove their claims when called out on them. The low info voters won’t follow up on their own and will believe the lies being spewed by candidates (mostly Dems, IMHO). It smells too much like Harry Reid on the floor calling people tax dodgers and other libelous things. And I think it should apply to both (or third) parties equally. I think a little honesty in today’s toxic world wouldn’t be a bad thing…

Big John on April 22, 2014 at 1:07 PM

Big John on April 22, 2014 at 1:07 PM

Who do you think was telling the truth in the SBAList vs. Driehaus case, and who would you have make that decision?

Fenris on April 22, 2014 at 1:25 PM

Yes, public figures do have a higher standard to prove that they were slandered. I agree that’s how it should be.

Fenris on April 22, 2014 at 12:17 PM

That’s where we disagree. Why should they be any different from any other citizen?

This is actually an example of what we’re talking about: what is true. I say the laws do apply to them; you say they don’t. You’re wrong! ;)

Fenris on April 22, 2014 at 12:17 PM

Except this can easily be checked.

I’m definitely not asking for any more laws/regulations. We can all see where that goes (lack of freedom and more government tentacles in everything).

GWB on April 22, 2014 at 2:19 PM

It smells too much like Harry Reid on the floor calling people tax dodgers and other libelous things.

Big John on April 22, 2014 at 1:07 PM

The problem with regulating that is that it’s practically guaranteed by the Constitution.

GWB on April 22, 2014 at 2:20 PM

GWB on April 22, 2014 at 2:19 PM

Yes, it can easily be checked. There are libel/slander laws which cover public figures. Because you don’t like the way the law is written does not mean that they do not exist.

I shouldn’t have used the word ‘agree’, which implied that you agreed with me. I should have said “I think that’s the way it should be”. Sorry, my bad.

My main point was that what is ‘true’ is not always a black & white logical conclusion. As shown by this very case, and our own little disagreement (probably a kind of trivial disagreement).

Fenris on April 22, 2014 at 3:00 PM

There are libel/slander laws which cover public figures.

Fenris on April 22, 2014 at 3:00 PM

And, they are different than those for ordinary citizens. That – to me – is a problem.

GWB on April 22, 2014 at 3:41 PM

I don’t trust the government to be the arbiter of truth in political advertising. There’s too much conflict of interest involved.

Besides, the Constitution doesn’t say,”Congress shall make no law (…) abridging the freedom of speech, as long as that speech is demonstrably true.”

Cheshire_Kat on April 22, 2014 at 7:58 PM