Obama's First-Amendment Defense of Political Liars
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President Obama, through his U.S. Solicitor General, arguing before the U.S. Supreme Court, has now stated that lying in political campaigns isn't merely protected by the First Amendment's guarantee of free speech, but that it is an especially protected form of speech, which must not be hindered by any state government, such as by the state of Ohio. Ohio has outlawed such intentional deception of voters, and has established heavy criminal penalties against it, when it can be proven. The idea behind this law is that any democracy in which lying in political campaigns isn't penalized by severe penalties, won't remain a democracy much longer, but will instead descend into a kleptocracy: theft of elections themselves (via lies), so that they become just nominal "elections," which are controlled by whatever aristocrats can put up the most money, to lie the most effectively, to the biggest number of voters: lying-contests.
It's an important Supreme Court case. As Constitutional lawyer Lyle Denniston has noted, in his "Argument preview: Attack ads and the First Amendment": "In all of the history of the First Amendment, the Court has never ruled that false statements are totally without protection under the Constitution." However, this Supreme Court will have an opportunity to do that here, in the case SBA List v. Dreihaus; or else, to do the exact opposite -- to open wide (even wider than they now are) the floodgates to political lies.
Public opinion (e.g., this), and the President of the United States (via his Solicitor General, to be discussed here below), seem to favor opening the floodgates. If that were to happen, then the recently unleashed outpouring of sheer corporate and billionaire cash (via the Citizens United decision, and the more recent McCutcheon decision) into political contests, will become even more unrestrained by (and disconnected from) any consideration of the truthfulness (or not) of this "free speech," so that the U.S. public will naturally be inundated by torrents, not only of aristocratic money pouring over public opinions, but of outright and provable lies financed by the richest aristocrats, polluting and poisoning those torrents, which will drench voters' minds, and will thus poison political outcomes (which is why that money is spent -- to do precisely this).
U.S. Solicitor General Donald B. Verilli Jr., in this case, SBA List v. Dreihaus, wrote to the U.S. Supreme Court, defending political liars’ rights:
This case does not require the Court to determine precisely when an alleged chilling of speech [by the threat of being prosecuted for lying in a political campaign] constitutes hardship [being suffered by that liar], because it presents that issue in a unique election-related context that makes the hardship to petitioners [the liars] particularly clear. Petitioners [the liars] have sufficiently alleged that a credible threat of prosecution will chill them from engaging in [deceptive] speech relating to elections for public office, the very type of speech to which the First Amendment ‘has its fullest and most urgent application.’ Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). As petitioners explain (Br. 40), under Ohio law, candidates who are the subject of such [lying] speech can try to silence it by complaining to the [Electoral] Commission and thereby tying up the speaker [the liar] in administrative litigation during the short window of time in which the electoral speech [that person’s lie] would be most effective [at deceiving voters].4
The court of appeals largely disregarded these considerations in favor of focusing on evidence suggesting that the Commission proceedings [the investigation into the lie] did not actually deter [the liar] SBA List from disseminating its message [its lie]. Pet. App. 17a-18a. The court correctly recognized that evidence of how agency action [the investigation into that alleged lie] has affected a plaintiff’s conduct is an important factor in the hardship analysis. In this case, however, SBA List’s particular reaction to the Commission proceedings during the 2010 election cycle does not eliminate the objectively credible threat of prosecution that petitioners [SBA List] face if they engage in similar [lying] speech in future election cycles.