What’s Scarier Than Truthiness in Politics? A Law Banning It.

Oral argument from the court.
April 22 2014 6:52 PM

What’s Scarier Than Truthiness in Politics?

 A law banning it.

(Continued from Page 1)

Scalia says, “I don’t care if all the commission says there is some reason to believe that they were lying. It is pretty sure that it’s going to happen because somebody will complain. You are forcing them to go through this procedure in the midst of an election campaign, right?” Justice Anthony Kennedy puts it this way: “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”

“What’s the harm?” asks Justice Stephen Breyer rhetorically. “I can’t speak, that’s the harm.” (Italics mine, for real.)

Murphy tries to argue that the probable cause determination by the commission isn’t a big deal, but Justice Elena Kagan retorts, “There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied.”

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Then Breyer, who described himself at a speech this week as a “bringer of chaos,” brought this gem to Murphy: “You’re a lawyer for the commission. You understand it better than I. I’m just making up an example. Somebody walks in front of the house of a political opponent, has a big sign that says ‘murderer.’ No one asked. … But he voted for legislation that led to the death of many cats. Would they prosecute that or not?” 

Scalia sums up the actual harms SBA List suffered this way: “We’re talking about whether this law imposes limitations upon the freedom of speech. And if you say whenever you do it, you are going to have a lawsuit, you’re going to be hauled before this commission. You may have a good case, you may not have a good case, but you have to justify yourself to this commission before you can make the assertion.” Murphy replies: “You’re making it sound like the commission hears every political statement out there. But it has to be filed by a person, and only one person filed a complaint against the SBA this last time, and he is in Africa now. So I don’t think he’ll be filing complaints any time soon!”

Scalia replies: “He really lost, didn't he?” Everyone laughs. (That’s true: The transcript says “Laughter.”)

Carvin finishes with a strong rebuttal: “Our entire point is it’s unconstitutional for us to say, ‘Mother, may I?’ before we speak.” He adds that this isn’t just about what happened in 2010: “It is blazingly obvious that our sole concern is not Rep. Driehaus. It is any legislator that voted for an act that we believe devoutly has ‘taxpayer-funded’ and ‘abortion’ in it. So we’re facing a credible threat. We ask the court to lift this yoke so that we can become full participants in the next election cycle.”

One might hope for more truth and less truthiness in politics, especially now that all that truthiness will be paid for by about 11 really rich people (exaggeration). But the only thing scarier than truthiness is the prospect of an elected Ministry of Truthiness. And also dead cats. (Truly.) 

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.