"... the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is."

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Opinion: “Political lies” decision protects free speech
By Kenneth Craycraft, Jr., Swptember 16, 2014

As I predicted in this space back in March, Ohio’s so-called political false-statements law has been declared unconstitutional, and its enforcement has been permanently enjoined. In SBA List and COAST v. Driehaus, Cincinnati-based U. S. District Court Judge Timothy Black examined the question whether the law is “the least restrictive means of ensuring fair elections.” His answer was a resounding and definitive “no.”

Supporters of the law, and detractors of plaintiffs Susan B. Anthony List, an anti-abortion group, and the Coalition Opposed to Additional Spending & Taxes (COAST), delight in asserting that plaintiffs are fighting for the right to lie in political campaigns. Judge Black puts this canard to rest at the very outset: “Lies have no place in the political arena and serve no purpose other than to undermine the integrity of the democratic process.” SBA List and COAST strongly agree that lies have no place in political campaigns.

On the other hand, the free-speech provisions of the First Amendment to the U. S. Constitution inject a very strong dose of skepticism in the propriety and ability of the government to make determinations about the truth or falsehood of political speech. As Judge Black put it, one purpose of this skepticism is the “fear that the Government might persecute those who criticize it.” In this case, the fear took the form of a partisan three-person Ohio Election Commission using the law to chill speech that a majority of the commissioners disagreed with.

Judge Black saw this when he wrote that there is no reason to believe that the OEC has a privileged position to determine the truth or falsehood of a political statement. But the law permitted the OEC, with little notice or due process, not only to decide what is true and false political speech, but to punish it as well. Moreover, this power of the OEC chilled future speech, such as SBA List intends to make in the coming election cycle.

What, then, is the remedy for false, or allegedly false, political speech? True speech. Rather than enlist the government to silence those who one believes are making false political statements, the American way is to make true statements. The remedy for specious arguments is to make reasonable ones. As Judge Black put it, “the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is.”

In the case before the court, it was not possible for then-Congressman Steve Driehaus to do this, because the speech that SBA List intended to make about him was true. By voting for the Affordable Care Act, Driehaus voted for various ways that taxpayers would be forced to fund abortion. That has been shown to be true. For example, a January 2014 Kaiser Foundation study found that 6.1 million women will gain elective abortion coverage under the ACA, through the Medicaid expansion and new federal premium subsidies. And in the recent Hobby Lobby decision, the U.S. Supreme Court effectively held that the ACA forced Hobby Lobby (a taxpayer) to fund abortions through its insurance plan. Unable to show that SBA List’s speech was false, Driehaus enlisted the coercive power of the OEC to silence SBA List. And Ohio congressional candidate Marcy Kaptur was almost certainly prepared to do the same.

But last Thursday, a federal judge forcefully and clearly stated that silencing disagreeable speech is not the constitutional way to deal with it, and struck down Ohio’s so-called political false-statements law. In so doing, Judge Black broadened our free-speech rights, and we are all better off for it. 
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