"... it is hardly clear that assessing the truth of a political advertisement is the sort of thing better entrusted to bureaucrats and prosecutors than to the citizenry."

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In Ohio, a Law Bans Lying in Elections. Justices and Jesters Alike Get a Say.
By Adam Liptak, March 24, 2014

The Supreme Court gives lawyers who argue before it a little guidebook. One tip: “Attempts at humor usually fall flat.”

P. J. O’Rourke, the satirist, is taking his chances. He has filed a funny supporting brief in a Supreme Court case over what the government can do to address lies in election campaigns. Mr. O’Rourke says spin and smear are central to American democracy.

But his brief, amusing though it is, cannot compete with the work of a professional politician. Michael DeWine, Ohio’s attorney general, is filing briefs on both sides of the case.

“It certainly is rare, and it should be rare,” Mr. DeWine, a Republican, said in an interview. But he said he had dual constitutional obligations.

One was to defend an Ohio law that makes it a crime to say all sorts of false things during political campaigns. The other was to explain to the justices how enforcement of the law can do violence to the First Amendment.

“What’s important is not only how the law is written, but how it is used in practice as a club in political campaigns,” Mr. DeWine said.

The Ohio law makes it a crime to make knowingly or recklessly false statements about political candidates that are intended to help elect or defeat them. Complaints, which can be filed by anyone, are heard by the Ohio Elections Commission, which makes preliminary determinations and can recommend criminal prosecution. The first offense could lead to six months’ imprisonment, the second to disenfranchisement.

The law applies to everyone. It covers, Mr. DeWine said, “the Internet and blogs and Facebook and citizens exercising their First Amendment rights in the town square.”

Mr. DeWine arranged to have outside lawyers to make those points on his behalf.

“In practice,” that brief said, “Ohio’s false statements law allows the state’s legal machinery to be used extensively by private actors to gain political advantage.”

Staff lawyers in the attorney general’s office will file a second brief this week, this time defending the law. “I told them to go at it hard,” Mr. DeWine said, adding that the two sets of lawyers have not been in contact.

The case, Susan B. Anthony List v. Driehaus, No. 13-193, will be argued next month. It was brought by an anti-abortion group that had sought to put up a billboard attacking Steven Driehaus, a Democrat, in the midst of what turned out to be his unsuccessful 2010 run for re-election to the House of Representatives.

“Shame on Steve Driehaus!” the billboard would have said. “Driehaus voted FOR taxpayer-funded abortion.” The advertising company that owned the space refused to rent it after hearing from Mr. Driehaus’s lawyers, who invoked the Ohio law.

The statement itself, based on Mr. Driehaus’s vote for the Affordable Care Act, may be true in some sense, but you would need strong coffee and an accountant to understand the reasoning. On the other hand, it is hardly clear that assessing the truth of a political advertisement is the sort of thing better entrusted to bureaucrats and prosecutors than to the citizenry.

That is the point Mr. O’Rourke and the libertarian Cato Institute made in their cheeky, hilarious and quite possibly counterproductive brief. They said they were “unsure how true the allegation is given that the health care law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.”

Truthiness, the brief explained, is a characteristic of a statement made “from the gut” or because it “feels right” but “without regard to evidence or logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the Affordable Care Act.

The guidebook for Supreme Court lawyers does not address whether it is a bad idea to mock the chief justice of the United States as you seek his vote, but that does seem to be the consensus view.

The actual legal question before the justices is, as is so often the case at the court, a preliminary one. Here it is whether the anti-abortion group is entitled to sue at all. On the one hand, the Ohio Elections Commission said there was probable cause to think the group had violated the law. On the other, the matter fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group no longer had anything to worry about. In earlier decisions, courts have upheld the law.

But that was before United States v. Alvarez, a Supreme Court decision issued the same day as the health care ruling. It struck down a federal law that made it a crime to lie about receiving military decorations, and it cast doubt over the constitutionality of the Ohio law and similar ones in 15 other states.

Mr. O’Rourke connected the dots on the first page of his brief, assuring the justices that he, his lawyers, his family members and his pets “have all won the Congressional Medal of Honor.”
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