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.

A line forms to enter the U.S. Supreme Court for oral arguments on April 22, 2014, in Washington, D.C.
A line forms to enter the U.S. Supreme Court for oral arguments on April 22, 2014.

Photo by Alex Wong/Getty Images

Truthiness (troo-thee-nis) n.: The quality of seeming to be true according to one’s intuition, opinion, or perception without regard to logic, factual evidence, or the like.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Truthiness abounds at the U.S. Supreme Court this morning. Starting with the truthiness of the very name of the petitioner, Susan B. Anthony List, a group that has appropriated a women’s rights icon based on a truthiness-founded  assertion that the iconic civil rights leader had a verifiable and “passionate abhorrence” to abortion. That passionate abhorrence has been debunked by historians, but truthiness knows no debunking. Today’s case, Susan B. Anthony List v. Driehaus, is a challenge to an Ohio statute that criminalizes making false statements about a political candidate, either knowingly or in reckless disregard of whether it was false, “if the statement is designed to promote the election, nomination or defeat of the candidate.” Fifteen-ish other states have similar laws on the books. SBA List claims that the law violates its First Amendment free speech rights.

In 2010 the group tried to post billboards and actually ran radio ads claiming that then-Ohio Congressman Steven Driehaus, who claimed to be a pro-life Democrat, supported “taxpayer-funded” abortions when he voted for the Affordable Care Act a few months earlier. The proposed billboard would have read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Driehaus complained to the Ohio Elections Commission that the proposed ad was a lie because both the health care law and a subsequent executive order prohibited federal abortion funding, except in the case of rape, incest, and maternal health.

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Fearing legal consequences, the company that owned the billboard refused to post the ad after a call from Driehaus’ lawyer. The elections commission, which enforces the statute, voted 2-1 to find probable cause that SBA List had violated the no-lying-in-politics law. SBA List filed a suit challenging the statute. Driehaus lost the election, moved to Africa, and withdrew his complaint to the elections commission. (That’s not a metaphor—he really moved to Africa.) SBA List claims that the law chilled its free speech rights by forcing it to defend its views before the elections commission. A second group claimed to be scared too. A federal court determined that SBA had suffered no real harm and bounced the lawsuit for a lack of standing, or ripeness (meaning, they hadn’t really been hurt by the commission’s ruling), and the 6th Circuit agreed.

So here we are. Not just debating truthiness, but also debating standing: whether or not SBA List was harmed by not being allowed to spout its truthiness. And whether or not it was harmed enough to take that harm to court. Justice Antonin Scalia puts it this way: “You’re not asking us to resolve the constitutional question, just the question of whether you can raise the constitutional question.” (No lie. He’s pithy that way.)  

You should know in advance that everyone is on SBA’s side. All the briefs in this case are filed on behalf of SBA, from bedfellows (a metaphor—SBA would never have sex out of wedlock) ranging from the Republican National Committee to the Christian Legal Society and the American Civil Liberties Union. Mike DeWine, the attorney general of Ohio, managed to file briefs on both sides of the case. (That is not an exaggeration, he really did.) P.J. O’Rourke filed a brief that defends truthiness in all its magnificent magnificence (“where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America?”). The Justice Department comes into the case at some midpoint between truth and truthiness, but trust me when I tell you that it’s not all that interesting and has nothing to do with abortion or elections. They say the law is unconstitutional on its face.

Michael Carvin represents SBA List, and he explains the case this way: Of course the group has legal standing to bring a First Amendment challenge to the law because, “since an enforcement agency has already told us that this statement probably violates their law, we obviously face a clear and very credible threat of enforcement if we repeat those statements.”

Justices Sonia Sotomayor and Ruth Bader Ginsburg bat at Carvin a bit about whether the group really has a reason to believe that they will be dragged back before the elections commission again for the exact same speech, but their heart doesn’t seem to be in it. Sotomayor suggests that the probability of that is entirely speculative: “You have to assume there’s a candidate who is going to react by initiating an action, you have to assume further that a panel is going to render the same decision, and you have to assume even further that a federal prosecutor is going to agree and actually bring the case.”

Carvin responds that his clients are harmed well before all that happens: The very moment a complaint is filed, they are faced with “very serious costs and risks of litigation in front of the commission, and in the middle of an election campaign during the crucial weeks when we’re trying to get our speech out.” He adds: “Our constitutional claim here is that the Ministry of Truth has no ability to judge our political speech as falsity.” (He says that. Ministry of Truth.) Ginsburg asks whether this is all a matter of standing or ripeness. Carvin, with a staggering lack of truthiness, replies: “In all candor, Justice Ginsburg, I can’t figure out the difference between standing and ripeness in this context.”

Eric J. Feigin is an assistant solicitor general and he argues some stuff that is interesting (to other people), and then Eric E. Murphy, the solicitor general from Ohio, has to defend the law that pretty much all the justices believe to be unconstitutional. (Slight exaggeration: Clarence Thomas doesn’t say one way or another.) Chief Justice John Roberts asks Murphy to promise that “if they do the exact same thing the next election that they did in the last one, that you will not take action against them?” Murphy can’t. (Truly, he can’t. That’s not his job.)

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.”

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.) 

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