A federal judge issued an important First Amendment decision on Thursday that prevents state governments from regulating campaign advertisements on the basis of truthfulness.
Judge Timothy Black rejected the legality of the Ohio campaign truth squad, a commission charged with determining whether or not a campaign´s political statements are or are not truthful.
“We do not want the government deciding what is politicla truth -- for fear that the government might persecute those who criticize it. Instead, in a democracy, the voters should decide,” writes Judge Black in his opinion.
The decision is predicated on a FIrst Amendment right to free speech. It also takes into consideration the considerable difficulty in deciding the truthfulness of statements that are not obviously true or false, that are found to be false in retrospect, or any number of other difficulties such the committee would ultimately face.
Judge Black also seeks to eliminate the possibility of the committee swaying a campaign, intentionally or otherwise.
According to the ruling, the ruling does not seek to “force silence, but to encourage truthful speech in response, and to let the voters, not the government, decide what political truth is.”
The decision echoes an opinion issued by the Supreme Court in 2012, quoted in the more recent decision, that states that “The remedy for speech that is false is speech that is true.”
Judge Black, interestingly, articulates his support for this point elsewhere with a quote from the popular NetFlix series, House of Cards: “The more modern recitation of this longstanding and fundamental principle of American law was recently articulated by Frank Underwood in ‘House of Cards’: ‘There’s no better way to overpower a trickle of doubt than with a flood of naked truth.’
The case has its genesis in a billboard advertisement the Susan B. Anthony List sought to run four years ago in a campaign against then-Rep. Steve Driehaus. The advertisement claimed that the representative had supported legislation providing funding for abortions.
Driehaus denied the accusations, responding that the law does not provide free or heavily subsidized abortions. He sought redress by referring to an Ohio law that prevents the publication of “false statement[s] concerning the voting record” of a candidate.
This is the law the Susan B. Anthony List sought to establish as unlawful. As they worded it according to the brief, “[We are not] arguing for a right to lie. We’re arguing that we have a right not to have the truth of our political statements be judged by the Government.”
The Susan B. Anthony List does lie. The media lies. And, as the existence of FactCheck.org makes clear, politicians lie. The new precedent establishes that such lies are, while unsavory and by default dishonest, not immanently illegal.
The decision places the burden on those lied about to demonstrate the truth, rather than on those prone to lying to tell the truth.
Last week, a federal judge made a similar ruling “against a Minnesota ruling against a Minnesota law that tried to weed out false political ads.” This only applies to political ads, and those advertising Jiffy Lube prices are exempt.
Judging from these cases and U.S. Supreme Court precedents, final determinations concerning the truthfulness of campaign claims will here on in remain in the hands of constituents.