By Bruce Fein – – Saturday, September 13, 2014
“If the law supposes that, the law is a ass– a idiot.”
That exasperation captured Mr. Bumble’s scorn for British common law in “Oliver Twist.” But it also applies in spades to Thursday’s decision by a federal district court conferring First Amendment protection on intentional falsehoods during political campaigns uttered for the purpose of influencing the outcome of the election.
According to U.S. District Judge Timothy S. Black, the Constitution permits more protection against fraud in purchasing a jar of peanut butter than in casting a vote for the president of the United States!
That legal absurdity emerged from a First Amendment attack on Ohio’s political false-statements laws in Susan B. Anthony List v. Ohio Elections Commission. In order to deter electoral fraud that might change election results, Ohio prohibits a candidate or supporters from publishing known factual falsehoods about an opponent. Untrue statements due to negligence, haste or inadvertence are permitted.
Ohio’s enforcement protocols are calculated to deter frivolous false statement complaints. They are tried before the Ohio Elections Commission (OEC). The complainant bears both the costs and responsibility for investigating, prosecuting, and proving a violation by clear and convincing evidence. The complainant may be required to be deposed during discovery. And the OEC typically issues only a reprimand for a false-statements violation. In sum, few would waste the time, energy, and money to needed to prosecute a concocted false-statements violation.
Moreover, intentional lies in political campaigns impair the voter’s right to be informed before casting a ballot and pollute the electoral process. The U.S. Supreme Court noted in Garrison v. Louisiana:
“At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.”
Judge Black naively maintained that intentional falsehoods could be timely defeated by truthful responses. Mark Twain explained, “A lie gets halfway around the world before truth has a chance to get its pants on.” And ruthless candidates are inclined to tell lies about their opponents on the eve of balloting to prevent a truthful rebuttal from reaching voters.
Judge Black absurdly insisted that the case was not about a right to lie, but about not having the truth of political statements be judged by the government. But the Ohio law in question only prohibited false statements of fact. And the government was empowered only to judge the truth or falsity of factual statements, which is routinely done in defamation litigation.
The judge fretted that the law would deter truthful speech because to defend against a false-statements complaint would require payment of legal fees and exposure to discovery. But virtually every law is subject to the same criticism. They all create opportunities for false complaints needing time and money to rebut. According to Judge Black’s reasoning, prohibitions of murder are unconstitutional because they burden exercise of the right of self-defense in requiring vast time and legal fees to establish.
Judge Black’s zany decision brings to mind Justice Oliver Wendell Holmes’ critique of the judicial mind: “[W]e [judges] need education in the obvious more than the investigation of the obscure.”