Can the Government Prevent Lying in Political Ads?


The Supreme Court last week granted cert in a case that involves the question of whether the government can prevent allegedly false speech in political ads or whether this is a violation of the Free Speech Clause of the First Amendment. Some details about the case:

The case, involving an anti-abortion group’s claim that Ohio’s False Statement Law violates free speech, will likely be argued in April, with a ruling announced during the last months of the Supreme Court’s term in May or June.

“We are thrilled at the opportunity to have our arguments heard,” Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List, said in a press release Friday. “The Ohio Election Commission statute demonstrates complete disregard for the Constitutional right of citizens to criticize their elected officials.”

During the 2010 election cycle, Susan B. Anthony List accused then-Rep. Steven Driehaus (D-Ohio), who was running for reelection against Republican Steve Chabot, of endorsing taxpayer-funded abortions by voting for President Barack Obama’s Affordable Care Act.

Driehaus complained to the state election commission that the group’s proposed billboard ads saying, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” were false, since federal law prohibits the use of taxpayer money for abortion funding. The state blocked the billboards.< ?blockquote>

Both the district and appeals courts dismissed the case and this is the appeal of those decisions. Now I know it sounds like an easy case: Of course you can’t lie in a political ad, right? It isn’t quite that simple. Allowing the government to decide what is and is not a political lie can be a dangerous idea. Would you trust a Republican administration with that power? It’s not difficult to imagine how easily that power could be misused for partisan purposes.

Comments

  1. Donnie says

    Well, Fox News won the right at the Supreme Court to lie on the air, so…this law will not pass muster. Thus, the State will need to change and provide for triple damages in libel/slander lawsuits within political ads plus attorney costs. Essentially, you have the right to lie and you have the right to pay damages for that lie.

  2. says

    Political advertising is advertising. There is very solid case law regarding what is and what is not permissible in advertisements. A company is not allowed to make exaggerated claims about their product, and they are pretty clear restrictions on what they can say about their competitors.

    I believe it would be a good thing if the Supreme Court took that stance. I’m not holding my breath, though.

  3. dshetty says

    I’d say the law is sound – you just need *truth* to be evaluated by an independent body(I wonder if these exist in the real world) . As #3 also points out that this is the law for advertising.

  4. jeroenmetselaar says

    Like it or not but the freedoms of press, speech and religion imply the freedom to lie. You don’t have to like that bit but it is kind of like a package deal.

    OR

    Is it like making fraudulent claims in advertising?

    I am not sure I have the answer here.

  5. says

    I don’t quite see what is meant by “political lie.” A lie is a lie is a lie, isn’t it?* And making false statements that damage the reputation of a person is libel, right? If this is all the case and it can be proven that the offending party was, indeed, lying, then it seems a bit open-and-shut to me.**

    *If I’m oversimplifying here, please point it out and tell me why.

    **See above.

  6. Michael Heath says

    jeroenmetselaar writes:

    Like it or not but the freedoms of press, speech and religion imply the freedom to lie. You don’t have to like that bit but it is kind of like a package deal.

    In regards to press and speech, this is an extraordinary claim. Do you have a compelling citation supporting your assertion?

  7. says

    READ THE LAW PEOPLE! ITS NOT A LIE! HE VOTED FOR OBAMACARE WHICH MANDATES FREE ABORTIONS FOR LOOSE WOMEN AND OTHER MOOCHERS! AFTER THE “LAW” “PASSED” THE “LEGISLTAIVE” BRANCH OF THE “GOVERNMENT” THUGS FROM PLANNED PARENTHOOD BROKE IN TO MY NEIGHBORHOOD SET UP ONE OF THEIR MURDER FARMS AND THE SIGN IN THE WINDOW SAID “FREE TAXPAYER FUNDED ABORTIONS FOR SLUTS”!

  8. Alverant says

    I would think that if you can prove someone is lying, you can have the liar stop, and have them punished for any damage done. That should include political ads. In this case, it’s pretty easy to prove the anti-abortion group deliberately gave false information. The key word is “prove”.

  9. abb3w says

    Ick. Balancing between allowing legitimate advocacy and discouraging defamation seems tricky. I can see some nasty cans of worms on both the law and the politics.

    Looking more to politics than law, as a general principle it seems that speech by the candidates themselves should not be subject to prior restraint. So for any ad that says “candidate Dan Smith rapes sheep” or other provably false material claim and where candidate Jones says “I’m John Jones, and I approve this message”, prior restraint would seem less appropriate remedy than allowing a libel lawsuit, with damages potentially including (say) three times the actual cost of producing and airing a correcting ad, plus the office’s actual salary for the duration of the term (if the election was lost, and the jury thinks the ad might have been the deciding factor). This is not a perfect remedy, as Jones will still hold the office; however, presumably a combination of the normal political processes for removing an SOB from office (impeachment/expulsion) and allowing any future candidates to run ads noting that the courts have declared Jones a lying SOB would tend to correct that within the space of another election cycle.

    But, that’s just candidates. PACs are a bit more tricky — particularly if billionaires Larry, Moe, and Curly want to set up a PAC to run the anti-Smith ad to sway the sheep demographic, using a corporate shell that raises (mostly from them) enough money to run the ad, but not enough to pay such a libel judgement. It seems like it might be logical and allowable for the courts to say the government may require accepting some degree of prior restraint as price for granting the protective shielding of the corporate veil; or alternately, the legislature might place some explicit limits to the corporate veil for PACs, such that a libel judgement might reach through to personally impact donors responsible for more than (say) 10% of the PAC’s donations in the previous year and/or the corporate governing officers.

  10. Donnie says

    @7 Michael Heath :

    In regards to press and speech, this is an extraordinary claim. Do you have a compelling citation supporting your assertion?

    The appropriate citation can be found here: http://en.wikipedia.org/wiki/Jane_Akre

    Of course, I thought it was a supreme court case, but it is not. Also, the wikipedia, being neutral has a different take on what I thought the case was about and the “implied” in the vocal, “fox news can lie” is different than expected. As such, this may not be as clear cut as expected.

    http://www.projectcensored.org/11-the-media-can-legally-lie/

    Essentially, my view from further (limited) google research is that Ms. Akre and all are claiming, “fox news can lie because we all know that Monsanto is an evil corporation and everything it produces is bad regardless of the science behind the product.”

  11. eric says

    @6:

    And making false statements that damage the reputation of a person is libel, right?

    Not quite. IANAL but AIUI, Intentionally making false statements in order to damage someone is libel. If you believe your statement to be true when you make it, it ain’t libel (and let’s face it, the Susan B Anthony List probably believes what they’re shoveling). And if you know its false but don’t intent harm by it but rather have some other motive (satire, for example), it ain’t libel.

    ***

    I don’t want the USG deciding what counts as true vs. false speech, but I wouldn’t mind some stronger rules about honestly advertising your primary sources of money. IMO the problem with PAC ads is not what they say, but that it’s difficult to evaluate who is actually doing the speaking. The names of the organizations are bland, meaningless, and rarely give any indication of where the group’s money is coming from. They essentially moneylaunder contributions from individuals and corporations until you can’t tell who are the actual sponsors of the ad. About the only indication of who is speaking is their final tag line – when you get “call X, and tell him/her not to vote for…” then you know the ad is coming from some group affiliated with the notX party.

  12. says

    If a political group can be found in a court of law to have spread information that was false, I say screw them.

    Individuals on the other hand are not groups and the law can make a distinction. If the FDA can rule about drugs and factual claims…

  13. eric says

    I would think that if you can prove someone is lying, you can have the liar stop, and have them punished for any damage done.

    IANAL but AFAIK, no. Well…not in the US. In the US, to stop them and punish them you basically have to show they knew they were lying and they had malicious intent in lying…which is extremely hard to do. Making statements you think are true is protected no matter how crazy. And lying for entertainment, satire, lying to show how much you dislike a political figure, etc… are all protected. In particular, I expect courts would strongly support disparagement of political figures given how much we value political speech.

    IMO the Susan B. Anthony List is going to win this one quite handily, unless the other side can come up with some email or internal document that shows SBAL knew they were saying something untrue and said it anyway hoping to change votes.

  14. D. C. Sessions says

    IANAL but AFAIK, no. Well…not in the US. In the US, to stop them and punish them you basically have to show they knew they were lying and they had malicious intent in lying…which is extremely hard to do.

    IAANAL, but IIRC the standard for public figures is “knowingly or with disregard for the truth.” In other words, if it was trivially easy to check and you didn’t bother before spending large sums to spread your story.

  15. John Pieret says

    Set Kouwenhoven @ 6:

    I don’t quite see what is meant by “political lie.” A lie is a lie is a lie, isn’t it?* And making false statements that damage the reputation of a person is libel, right? If this is all the case and it can be proven that the offending party was, indeed, lying, then it seems a bit open-and-shut to me.**

    *If I’m oversimplifying here, please point it out and tell me why.

    IAAL and you are oversimplifying.

    First of all, the Susan B. Anthony List was, almost undoubtably, making the claim that certain contraceptives (for example, IUDs and the morning-after pill) are “abortifacients.” And the Federal government will finance those contraceptives in the case of religious organizations that refuse to provide contraceptive coverage. So, the claim is not clearly untrue as it turns on whether or not those contraceptives amount, in fact, to abortions (though legal ones).

    Second, as a “public figure,” the congressman would have to prove malicious intent or “reckless disregard of the truth” on the part of Susan B. Anthony List before he could succeed with a defamation suit. If there is at least a colorable claim that those contraceptives induce an abortion, that could be difficult to prove.

    Since endorsing taxpayer-funded abortions is not a dispicable act, such as rape, pedophilia or the like (what the law calls defanation per se) the congressman would have to prove damages, which could be difficult to do, since how could you prove that these billboards didn’t add as many votes to his total, from those who approve of abortion, as it cost him in voters who are anti-abortion? His loss could have been the result of completely different issues.

  16. John Pieret says

    eric @ 14:

    Not quite. Malicious intent is not necessary for defamation against people who aren’t public figures. All that has to be shown in the case of non-public figures is that the person made a statement of fact without what a “resonable person” (i.e. a jury) would consider a sufficient basis for the statement. Sorta what Jim Garrow does every day.

  17. hrafn says

    One problem I can see with simply treating it as libel, is that by the time a libel case can be concluded (even assuming that hurdles such as intent can be overcome), the election will be long over.

    I think the state has a fairly compelling interest in establishing a more summary adjudication mechanism for such time-critical disputes.

  18. Michael Heath says

    jeroenmetselaar writes @ 5:

    Like it or not but the freedoms of press, speech and religion imply the freedom to lie. You don’t have to like that bit but it is kind of like a package deal.

    I respond @ 7:

    In regards to press and speech, this is an extraordinary claim. Do you have a compelling citation supporting your assertion?

    donnie respoinds:

    The appropriate citation can be found here: http://en.wikipedia.org/wiki/Jane_Akre

    Actually your own cite discredits this assertion. This webpage refers to the fact the FCC has a policy against falsification. The jurisdiction occurred in Florida’s court, not the federal court. The state court never claimed the U.S. Constitution protects the freedom of the press to lie, nor did this case even raise the issue of false non-journalistic speech, but instead the state of Florida ruled on different issues.

    A credible citation would need to be at least a holding precedent in one of the U.S. courts of appeals that holds for at least their jurisdiction; better if all the other circuits concurred, and best if you cited a SCOTUS ruling that still holds. Again, I’m very skeptical this assertion is true, which is why I asked for a cite.

  19. dingojack says

    Michael Heath – Warning: potential reading comprehension failure. re-read Donnie’s post #11.
    Dingo

  20. John Pieret says

    Michael Heath @ 19:

    I think both you and jeroenmetselaar are being a bit overbroad.

    Very generally speaking, there is no criminal statute against lying, except under oath (thank goodness!).

    There are possible civil consequences for making a statement of fact which is untrue. There are differences in the possible consequences based on the guidelines I outlined above @ 16 & 17 above.

    But the freedom of speech does allow lying about someone as long as it is a matter of opinion (‘I think Obama is a commie”) instead of a matter of fact (“In 1984 Obama joined the Communist Party of America”). Even if the person who said he thought Obama was a commie was proved, beyond a reasonable doubt, to have been lying about what he thought, it would still not be defamation.

    So, yes, There is a certain amount of lying that is presumed to be part of freedom of the press and and speech but it does not necessarily include all forms of lying.

  21. EnlightenmentLiberal says

    I’m with some of the other posters. I’m about as strong of a free speech absolutist you can get. However, I don’t see a problem applying the same standard of false advertisement and especially the standard of defamation (of public figures). To do that, you have to meet a high burden of proof. You have to show that the speech is materially false. You have to show that it caused damage or harm in some way. You have to show that the speaker knew it was false (or had a reckless disregard for the truth). I don’t see enough evidence offhand to apply that standard to this case – at least not until the people who put it up were made aware that it’s flagrantly false. You would need records of inside communication or something IMHO AFAIK.

  22. dingojack says

    “You have to show that the speech is materially false. … You have to show that the speaker knew it was false (or had a reckless disregard for the truth).”

    So which is it? The speech must be materially false or the speaker must be shown to have a reckless regard for the truth?
    If it’s the latter then billboards can be stopped before they are raised since all you need to do is show that the billboard is false and they had not taken reasonable steps to find the truth.

    Dingo

  23. Nick Gotts says

    In what sense is the Ohio State Election Commission “the Government”? I’m not sure whether this is a difference in language or of electoral law, but if I thought the UK Electoral Commission was part of, or being dictated to by, the government*, I would conclude that British democracy** was on the critical list, if not actually dead.

    *I do have serious concerns about its operations, specifically the irresponsible extension of postal voting, but AFAIK this has not been done to benefit or penalise any particular party or candidates.

    **Such as it is, given the grossly unfair voting system.

  24. eric says

    John @17:

    Malicious intent is not necessary for defamation against people who aren’t public figures.

    That’s interesting to know; thanks for clarifying that. But I don’t think it applies to this case. Spending millions of dollars on self-advertising (which Driehaus did, and which all candidates for major political offices do) all across the state is pretty good evidence that you are, or are trying to become, a public figure. :)

    Hrafn @18:

    I think the state has a fairly compelling interest in establishing a more summary adjudication mechanism for such time-critical disputes.

    There are many positive efforts the state (and private citizens or nonprofits) can make which will reduce the effectiveness or value of political lying without restricting speech or limiting constitutional rights. I already mentioned clearer identification of who’s actually doing the speaking/spending the money. Another example would be educating the public about the fact that such ads can lie with near total impunity, so caveat emptor. Another would be setting up more credible, neutral (or at least bipartisan) sources of information about candidates that consumers can quickly check.

    Trying to limit bad speech seems like the cleanest solution, but remember the last two lines of the OP. “Government” is not some disembodied force: its people. Assume that whatever censorship power you give to government is going to be used by people who disagree with you. If, for example, you give the government the power to pull ads until a dispute is settled, you’d better assume that your ideological and political opponents are going to be able to use that power to pull all the correct, true, and informative ads too.

    Think of government censorship like the cake-cutting game. There is the “decide what restrictions government can impose” role, and the “decide on what speech that power will be used” role. You get one role – and your political and ideological opponents get the other. In playing such a game, I think most people will quickly agree that “no/extremely limited power” is the natural optimum.

  25. John Pieret says

    eric:

    I was just clarifying on something not relevant to this situation. Anyone running for public office is a public figure for purposes of defamation law.

  26. says

    Given the US government’s power grabs and violations of rights since 2000, there’s no way politicians (near all in the employ of corporations) should be making laws about this, even though accountability is needed.

    It would be so easy for a government to label and ad as a lie and force the ad maker to prove the claim, then prosecute when the maker can’t. Or worse, the statements in the ad are true and the prosecution is lying by saying the aren’t, and corrupt court system backs them up.

  27. EnlightenmentLiberal says

    @dingojack
    It’s standard US defamation (of public individuals). You have to show all of the above.

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