By Ilya Shapiro
Ilya Shapiro
Imagine that a state creates a “ministry of truth” whose job it is to referee elections to make sure that candidates and activists didn’t insinuate, exaggerate or otherwise spin their messaging. Any political speech the truth-o-crats determined to be insufficiently candid would carry criminal penalties.
Sounds like a parable about the dangers of taking “clean elections” too far, right? Or a short story by George Orwell or Kurt Vonnegut?
In the American tradition of political free-for-all, the idea that an omnipotent censor would vet stump speeches and ads against some government-designed Truth-o-meter is a joke.
Unfortunately, this is no dystopia. By one count, about 20 states outlaw campaign distortions. Most notoriously, Ohio has a statute that prohibits making “false statements” about a candidate or ballot initiative.
In one instance, former Rep. Steven Driehaus, D-Ohio, used it against an anti-abortion group that had attacked him in the 2010 election. That’s the basis of a case now in front of the U.S. Supreme Court.
A hearing last week in the case began with the claim that “Driehaus voted for taxpayer-funded abortion.” That’s good fodder for dinner-party conversation or TV talking heads, but it was surreal in that it ended up before the highest court in the land.
There’s no question that Driehaus voted for the bill at issue — the Affordable Care Act — so the only dispute is whether statutory text actually provides federal funding for abortions (a question of legal, economic and even theological interpretation).
Alas, the Ohio law extends even past matters of interpretation. Its broad language also criminalizes rhetorical hyperbole. Legally speaking, Ohio’s ban of lies and damn lies is inconsistent with the First Amendment.
Indeed, disparaging political statements — whether true, mostly true, mostly untrue or wholly fantastic — are cornerstones of American democracy. Mocking and satire are as old as the republic.
Just ask Thomas Jefferson, “the son of a half-breed squaw, sired by a Virginia mulatto father.” Jefferson’s 1800 campaign against John Adams would make a modern spin doctor blush — and that’s before James Callender, noted pamphleteer and “scandalmonger,” alleged that Jefferson had fathered children with his slave Sally Hemings (a charge largely confirmed nearly 200 years later).
In the fierce election of 1828, supporters of John Quincy Adams called Andrew Jackson a “slave-trading, gambling, brawling murderer.” Jacksonian partisans responded by accusing Adams of securing a prostitute for Czar Alexander I.
Later that century, Grover Cleveland was asked at …read more
Source: OP-EDS
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