Is There a Right to Lie in Politics?

The Supreme Court didn't answer that question directly on Monday, but it laid the groundwork for eliminating unwise laws against untruths.
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“There is,” the late Tallulah Bankhead once remarked of a literary work, “less in this than meets the eye.”

If ever that could be said of a Supreme Court opinion, it would be Monday’s unanimous decision in Susan B. Anthony List v. Driehaus. The case seemed, at first glance, to concern the right to lie about politics. As properly decided by the Court, however, it only had to do with the abstruse doctrine of “standing to sue,” which requires a plaintiff challenging a law to show an “actual injury,” not just a political objection to the law.

The plaintiffs want to challenge an Ohio state law that bans “a false statement concerning the voting record of a candidate or public official” within a specified period before a primary or general election “knowing the same to be false or with reckless disregard of whether it was false or not.” (Their petition counted at least 15 other states that have “false statement” laws.) Because there is no action pending against them now, a lower court held they had no standing.

The issue presented to the Court thus was narrow. That may be why the opinion was delivered by Justice Clarence Thomas. Thomas has idiosyncratic views on free speech, and rarely gets to write a majority opinion on a First Amendment question. His opinion said only that a political group that might be penalized down the road for making “false” statements in future campaigns had standing to go forward now with a lawsuit.

The Ohio statute permits “any person” to bring an action for “falsity” to the Ohio Elections Commission, which must then determine whether there is “probable cause” (meaning “reasonable suspicion”) that the statement was knowingly or recklessly false. If so, a full hearing will be held within 10 days, and if the panel at the hearing agrees, the case is referred for criminal prosecution.

Then-Representative Steve Driehaus, a Democrat, voted for the Affordable Care Act. A pro-life group, Susan B. Anthony List, or SBA, issued a press release stating that Driehaus “voted FOR taxpayer-funded abortion.” It also bought radio time and contracted for a billboard to spread the word.

Driehaus complained to the commission, and got the outdoor-sign company to cancel the contract by threatening a complaint against it. Before the election, a commission panel found probable cause that SBA had deliberately or recklessly lied. Driehaus agreed to postpone the full hearing until after the election. He lost his seat, dropped his complaint, and joined the Peace Corps.

SBA had asked a federal court to block enforcement of the law. After the vote, however, the district court dismissed the request on the grounds that SBA was no longer in jeopardy of enforcement, and the Sixth Circuit affirmed it. The federal doctrine of “standing to sue” requires that a plaintiff challenging a law actually be hurt by it, rather than just not liking it. SBA said it planned to run “taxpayer-funded abortion” ads against other Democrats, and might face complaints to the commission again. The lower courts called that speculation. Anyway, SBA claimed its speech was true, the panel reasoned: SBA “does not say that it plans to lie or recklessly disregard the veracity of its speech.” Only if it admitted it planned to lie would it have standing to bring the suit.

Here is the First Amendment nub of the case, summed up by Lord Bacon in 1597: “‘What is Truth?’ said jesting Pilate, and would not stay for an answer.” Does the ACA provide for “taxpayer-funded abortions”? The law says not—its insurance subsidies must be “segregated” from any private-insurance funds that cover policyholders for abortion services. But SBA (and its co-plaintiff, the Coalition Opposed to Additional Spending and Taxes, or COAST) insist that it does, since the insurance companies will have the money in the “segregated funds” and can then set aside other money from premiums to cover abortion.

Who’s right? You decide.

And that—who decides—is the First Amendment issue behind this case. There is no clear “right to lie,” but a lot of precedent—and simple common sense—suggest it’s a bad idea to allow government officials to determine truth and threaten designated “liars” with jail. In fact, the existence of the law affects politics, even if no one is ever prosecuted; candidates can complain, get a “probable cause” ruling, and then proclaim that an opponent or critic has “lied.”

In a different context, Justice Thurgood Marshall once compared an unclear and subjective legal rule to the sword in an anecdote by Cicero that hung over the tyrant’s throne by a single horse’s hair: “The value of a sword of Damocles is that it hangs—not that it drops.” The injury, SBA claimed, was not the punishment but the threat. Monday, the Court unanimously found that the threat gave them the right to sue.

It’s pretty clear the law itself and others like it violate the First Amendment. Even the Ohio attorney general abandoned it before the Court, filing one brief arguing for the commission (supporting the law) and another (for himself) denouncing it. The Court ordered the case back to the lower courts, however, for full argument of the constitutional question.

Look for it, and laws like it, to go down in the next few years. Not only is it a bad law; it is also squarely in the sights of well-funded conservative groups that want to clear away any state or federal regulation of campaign speech. So brace yourself for a flood of political lies. That will mark a huge change from the status quo, won’t it?

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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