"Claims by and about candidates are best tested in the back-and-forth of a political campaign, in journalistic fact-checking and, if worse comes to worst, in a civil libel trial, not in a criminal trial."

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The truth about lying in politics
The Los Angeles Times editorial board, January 16, 2014

Lying by and about politicians is a regrettable and probably permanent feature of American democracy. But should it also be a criminal offense? The Supreme Court has agreed to hear an argument by an antiabortion group challenging an Ohio law that criminalizes false statements about candidates for public office. The justices should allow the group's claim to proceed. Using criminal law to police truth in political debate is unnecessary and invites abuse.

The Ohio law prohibits false statements about a candidate if they are made knowingly or with reckless disregard of whether they might be false. If the Ohio Elections Commission decides the law was violated, it "shall refer" the matter to prosecutors.

During the 2010 election campaign, the Susan B. Anthony List, an antiabortion political action committee, planned to post an ad on billboards accusing then-Rep. Steven Driehaus (D-Ohio) of voting "for taxpayer-funded abortion" when he supported the Affordable Care Act. Driehaus filed a complaint with the commission under the false statement law, and fearing legal reprisals, the advertising company that owned the billboard space refused to post the ad.

The Susan B. Anthony List tried to challenge the constitutionality of the law, but the U.S. 6th Circuit Court of Appeals said that no "case or controversy" existed because the elections commission hadn't made a final decision on Driehaus' complaint and because the group couldn't establish that it faced an "imminent threat" of prosecution.

The Supreme Court should allow the challenge to go forward. Citizens who believe a law violates their 1st Amendment rights ought to be able to make that case even if they aren't in immediate danger of being prosecuted. And the Ohio law is constitutionally suspect, especially after a 2012 decision in which the Supreme Court struck down a law making it a crime to falsely claim to have received military honors.

However well intended, laws criminalizing false statements about candidates could have the unintended effect of stifling truthful political speech. As the Supreme Court has observed: "Erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the breathing space that they need … to survive." There is also a danger that such laws will be invoked for partisan purposes or in cases in which the "false" statement is a matter of interpretation.

Claims by and about candidates are best tested in the back-and-forth of a political campaign, in journalistic fact-checking and, if worse comes to worst, in a civil libel trial, not in a criminal trial.
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