Supreme Court of the United States

No. 13-193

N THE

SUSAN B. ANTHONY LIST, ET AL.,

Petitioners,

STEVEN DRIEHAUS, ET AL.,

Respondents.

On a Writ of Certiorari

to the United States Court Of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE CATO INSTITUTE

AND P.J. O’ROURKE IN SUPPORT OF

PETITIONERS

ILYA SHAPIRO

Counsel of Record

Cato Institute

1000 Mass. Ave. NW

Washington, DC 20001

(202) 842-2000

[email protected]

QUESTION PRESENTED

Can a state government criminalize political

statements that are less than 100% truthful?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........................................i

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................ 2

ARGUMENT .............................................................. 6

I. TRUTHINESS, INSINUATIONS, AND

ALLEGATIONS ARE A VITAL PART OF

POLITICAL SPEECH ......................................... 6

II. TRUTHINESS, INSINUATIONS, AND

ALLEGATIONS ARE PROTECTED BY

THE FIRST AMENDMENT ................................ 8

III. THE PUBLIC INTEREST IN POLITICAL

HONESTY IS BEST SERVED BY

PUNDITS AND SATIRISTS ............................. 15

CONCLUSION ......................................................... 18

iii

TABLE OF AUTHORITIES

Page(s)

ASES

Beckham v. Bauer Publ’g Co.,

2011 U.S. Dist. LEXIS 32269

(C.D. Cal. Mar. 17, 2011) ..................................... 13

Brown v. Entm’t Merch. Assn,

131 S. Ct. 2729 (2011) .......................................... 15

Burnett v. Nat’l Enquirer,

144 Cal. App. 3d 991 (Cal. Ct. App. 1983) ........... 14

Burson v. Freeman,

504 U.S. 191 (1992) ................................................ 5

Brown v. Harlage

456 U.S. 45 (1982) .......................................... 16-17

Eastwood v. Nat’l Enquirer,

123 F.3d 1249, (9th Cir. 1997) ............................. 14

Gertz v. Robert Welch,

418 U.S. 323 (1974) .............................................. 14

Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ................................................ 13

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ....................................... 10, 14

Rickert v. Pub. Disclosure Comm’n,

168 P.3d 826 (Wa. 2007) ......................................... 9

United States v. Alvarez,

132 S. Ct. 2537 (2012) .................................. passim

United States v. Alvarez,

638 F.3d 666 (9th Cir. 2011) ................................ 17

Whitney v. California,

274 U.S. 357 (1927) .......................................... 7, 16

Williams v. Rhodes,

393 U.S. 23 (1968) ................................................ 13

STATUTES & REGULATIONS

Ohio Rev. Code. § 3517.21 ....................... 11, 12, 13, 17

OTHER AUTHORITIES

Dictionary.com, “Truthiness,”

http://dictionary.reference.com/browse/truthiness.3

Elisabeth Donnelly, Ye Olde Sex Scandals: Grover

Cleveland’s Love Child, The Awl,

http://www.theawl.com/2010/02/ye-olde-sex-

scandals-grover-clevelands-love-child ................... 3

Gallup.com, “Abortion,”

http://www.gallup.com/poll/1576/abortion.aspx .. 10

Judge Dismisses Libel Suit Against Tenn. Senator,

Associated Press, Apr. 26, 2013,

http://www.firstamendmentcenter.org/judge-

dismisses-libel-case-against-tenn-senator ...... 13-14

Mac McClelland, Ten Most Awesome Presidential

Mudslinging Moves Ever, Mother Jones, Oct. 31,

2008,

http://www.motherjones.com/mojo/2008/10/ten-

most-awesome-presidential-mudslinging-moves-

ever .......................................................................... 6

Monticello.org, James Callender,

http://www.monticello.org/site/research-and-

collections/james-callender .................................... 6

Monticello.org, Son of a Halfbreed Indian Squaw

(Quotation), http://www.monticello.org/site/son-

half-breed-indian-squaw-quotation ....................... 6

Monticello.org, Thomas Jefferson and Sally

Hemings: A Brief Account,

http://www.monticello.org/site/plantation-and-

slavery/thomas-jefferson-and-sally-hemings-

brief-account .......................................................... 6

Politifact.com, Lie of the Year: ‘If you like your

health care plan, you can keep it,’ Dec. 12, 2013,

http://www.politifact.com/truth-o-

meter/article/2013/dec/12/lie-year-if-you-like-

your-health-care-plan-keep-it/ .............................. 8

Politifact.com, Obama’s Plan Expands Existing

System, Oct. 9, 2008,

http://www.politifact.com/truth-o-

meter/statements/2008/oct/09/barack-

obama/obamas-plan-expands-existing-system/ ..... 8

Wikipedia.com, Truthiness,

http://en.wikipedia.org/wiki/Truthiness ................ 3

INTEREST OF AMICI CURIAE

Established in 1977, the Cato Institute is a non-

partisan public policy research foundation dedicated

to advancing the principles of individual liberty, free

markets, and limited government. Cato’s Center for

Constitutional Studies was established in 1989 to

help restore the principles of constitutional

government that are the foundation of liberty.

Toward those ends, Cato holds conferences and

publishes books, studies, and the annual Cato

Supreme Court Review.

P.J. O’Rourke is America’s leading political

satirist and an H.L. Mencken Research Fellow at the

Cato Institute. Formerly the editor of the National

Lampoon, he has written for such publications as

Car and Driver, Playboy, Esquire, Vanity Fair, House

& Garden, The New Republic, The New York Times

Book Review, Parade, Harper’s, and Rolling Stone.

He is now a contributing editor at The Atlantic and

The Weekly Standard, a member of the editorial

board of World Affairs, and a regular panelist on

NPR’s Wait, Wait . . . Don’t Tell Me. O’Rourke’s books

have been translated into a dozen languages and are

worldwide bestsellers. Three have been New York

Times bestsellers: Parliament of Whores, Give War a

Chance, and All the Trouble in the World. He is also

Pursuant to this Court’s Rule 37.3(a), letters of consent

from all parties to the filing of this brief have been submitted to

the Clerk. Pursuant to this Court’s Rule 37.6, amici state that

this brief was not authored in whole or in part by counsel for

any party, and that no person or entity other than amici made a

monetary contribution its preparation or submission. Also,

amici and their counsel, family members, and pets have all won

the Congressional Medal of Honor.

the author of Eat the Rich, Peace Kills, and Don’t

Vote: It Just Encourages the Bastards.

This case concerns amici because the law at issue

undermines the First Amendment’s protection of the

serious business of making politics funny.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“I am not a crook.”

“Read my lips: no new taxes!”

“I did not have sexual relations with that

woman.”

“Mission accomplished.”

“If you like your healthcare plan, you can keep it.”

While George Washington may have been

incapable of telling a lie,

his successors have not had

the same integrity. The campaign promise (and its

subsequent violation), as well as disparaging

statements about one’s opponent (whether true,

mostly true, mostly not true, or entirely fantastic),

are cornerstones of American democracy. Indeed,

mocking and satire are as old as America, and if this

Court doesn’t believe amici, it can ask Thomas

Jefferson, “the son of a half-breed squaw, sired by a

Virginia mulatto father.”

Or perhaps it should

Apocryphal.

Monticello.org, Son of a Halfbreed Indian Squaw

(Quotation), http://www.monticello.org/site/son-half-breed-

indian-squaw-quotation (last visited Feb. 28, 2014).

ponder, as Grover Cleveland was forced to, “Ma, ma,

where’s my pa?”

In modern times, “truthiness”—a “truth” asserted

“from the gut” or because it “feels right,” without

regard to evidence or logic

—is also a key part of

political discourse. It is difficult to imagine life

without it, and our political discourse is weakened by

Orwellian laws that try to prohibit it.

After all, 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? Voters have to decide whether we’d be

better off electing Republicans, those hateful,

assault-weapon-wielding maniacs who believe that

George Washington and Jesus Christ incorporated

the nation after a Gettysburg reenactment and that

the only thing wrong with the death penalty is that it

isn’t administered quickly enough to secular-

humanist professors of Chicano studies.

Answer: “Gone to the White House, ha ha ha!”

Elisabeth Donnelly, Ye Olde Sex Scandals: Grover Cleveland’s

Love Child, The Awl, http://www.theawl.com/2010/02/ye-olde-

sex-scandals-grover-clevelands-love-child.

Wikipedia.com, Truthiness,

http://en.wikipedia.org/wiki/Truthiness (last visited Feb. 28,

2014) (describing the term’s coinage by Stephen Colbert during

the pilot of his show in October 2005). See also Dictionary.com,

Truthiness, http://dictionary.reference.com/browse/truthiness

(last visited Feb. 28, 2014).

Everybody knows that the economy is better off

under [Republican/Democratic]

presidents—who

control it directly with big levers in the Oval Office—

and that:

President Obama is a Muslim.

President Obama is a Communist.

President Obama was born in Kenya.

Nearly half of Americans pay no taxes.

One percent of Americans control 99 percent of

the world’s wealth.

Obamacare will create death panels.

Republicans oppose immigration reform

because they’re racists.

The Supreme Court is a purely political body

that is evangelically [liberal/conservative].

All of the above statements could be considered

“truthy,” yet all contribute to our political discourse.

Laws like Ohio’s here, which criminalize “false”

speech, do not replace truthiness, satire, and snark

with high-minded ideas and “just the facts.” Instead,

they chill speech such that spin becomes silence.

More importantly, Ohio’s ban of lies and damn lies

is inconsistent with the First Amendment.

Circle as appropriate.

47 percent to be exact, though it may be higher by now.

Again, pick your truth.

Amici are unsure how much torture statistics can

withstand before they too run afoul of the law.

This Court has repeatedly held that political

speech, including and especially speech about

politicians, merits the highest level of protection. See,

e.g., Burson v. Freeman, 504 U.S. 191, 196 (1992)

(“the First Amendment has its fullest and most

urgent application to speech uttered during a

campaign for political office.”). Indeed, quite recently

this Court held that the First Amendment protects

outright lies with as much force as the truth. United

States v. Alvarez, 132 S. Ct. 2537 (2012).

It is thus axiomatic—not merely truthy—that

speech may only be restricted or regulated where

doing so is necessary to further a compelling state

interest. But the government has no compelling

interest in eliminating truthiness from

electioneering and, even if such an interest existed,

such laws are unnecessary because any injury that

candidates suffer from false statements is best

redressed by pundits and satirists—and if necessary,

civil defamation suits. Nor is the government well-

suited for evaluating when a statement crosses the

line into falsehood.

Ohio’s law blatantly violates the First

Amendment and directly conflicts with Alvarez. This

Court should terminate it with extreme prejudice.

Two Pinocchios out of five is OK, but three is illegal?

ARGUMENT

I. TRUTHINESS, INSINUATIONS, AND

ALLEGATIONS ARE A VITAL PART OF

POLITICAL SPEECH

In the hotly contested election of 1828,

supporters of John Quincy Adams called Andrew

Jackson a “slave-trading, gambling, brawling

murderer.” Mac McClelland, Ten Most Awesome

Presidential Mudslinging Moves Ever, Mother Jones,

(October 31, 2008).

Jackson’s supporters responded

by accusing Adams of having premarital sex with his

wife and playing the role of a pimp in securing a

prostitute for Czar Alexander I. Id.

During Thomas Jefferson’s presidency, James T.

Callender, a pamphleteer and “scandalmonger,”

alleged that Jefferson had fathered numerous

children with his slave Sally Hemings.

Callender’s

allegations would feature prominently in the election

of 1804, but it wasn’t until nearly two centuries later

that the allegations were substantially confirmed.

More recently, we’ve had discussions of draft-

dodging, Swift Boats, and lying about birthplaces

—

Available at

http://www.motherjones.com/mojo/2008/10/ten-most-awesome-

presidential-mudslinging-moves-ever.

Monticello.org, James Callender,

http://www.monticello.org/site/research-and-collections/james-

callender.

Monticello.org, Thomas Jefferson and Sally Hemings:

A Brief Account, http://www.monticello.org/site/plantation-and-

slavery/thomas-jefferson-and-sally-hemings-brief-account.

While President Obama isn’t from Kenya, he is a

Keynesian—so you can see where the confusion arises.

not to mention the assorted infidelities that are a

political staple. Any one of these allegations, if made

during an Ohio election, could be enough to allow a

complaint to be filed with the Ohio Election

Commission (OEC) and thus turn commonplace

political jibber-jabber into a protracted legal dispute.

When political barbs become legal disputes, the

public is denied an important part of political speech,

namely, responses to those allegations. “If there be

time to expose through discussion the falsehood and

fallacies, to avert the evil by the processes of

education, the remedy to be applied is more speech,

not enforced silence.” Whitney v. California, 274 U.S.

357, 377 (1927). Inflammatory, insulting, and

satirical speech is more likely to produce a response,

thus making the back-and-forth of politics a self-

correcting marketplace of ideas—except, of course,

when candidates can tattle to the government, which

then takes away their toys speech.

This case began when Rep. Steven Driehaus

responded to an advocacy group’s political attack

filing a complaint with the OEC. Cert. Pet. at 2.

Resources that could have been spent responding to

the petitioner’s truthiness were thus redirected to a

bizarre legal fight. And this caused a ripple effect:

The Coalition Opposed to Additional Spending and

Taxes felt sufficiently chilled by Driehaus’s actions to

refrain from engaging in the campaign at all. Id. at

Driehaus voted for Obamacare, which the Susan B.

Anthony List said was the equivalent of voting for taxpayer-

funded abortion. Amici are unsure how true the allegation is

given that the healthcare law seems to change daily, but it

certainly isn’t as truthy as calling a mandate a tax.

4. Ohio’s law thus ultimately weakened the vibrancy

of the state’s political discourse.

Supporters of Ohio’s law believe that it will

somehow stop the lies, insults, and truthiness,

raising the level of discourse to that of an Oxford

Union debate.

Not only does this Pollyannaish hope

stand in the face of all political history, it disregards

the fact that, in politics, truths are felt as much as

they are known. When a red-meat Republican hears

“Obama is a socialist,” or a bleeding-heart Democrat

hears, “Romney wants to throw old women out in the

street,” he is feeling a truth more than thinking one.

No government agency can change this fact, and any

attempt to do so will stifle important political speech.

II. THIS COURT HAS ALREADY HELD THAT

TRUTHINESS, INSINUATIONS, AND

ALLEGATIONS ARE PROTECTED BY THE

FIRST AMENDMENT

1. Many campaign statements cannot easily be

categorized as simply “true” or “false.” According to

Politifact.com, President Obama’s claim that “if you

like your health-care plan you can keep it” was true

five years before it was named the “Lie of the Year.”

Amici’s counsel has been to an Oxford Union debate;

the level of discourse is not always that high.

Compare Politifact.com, Obama’s Plan Expands

Existing System, Oct. 9, 2008, http://www.politifact.com/truth-o-

meter/statements/2008/oct/09/barack-obama/obamas-plan-

expands-existing-system, with Politifact.com, Lie of the Year: ‘If

you like your health care plan, you can keep it,’ Dec. 12, 2013,

http://www.politifact.com/truth-o-meter/article/2013/dec/12/lie-

year-if-you-like-your-health-care-plan-keep-it.

More importantly, even if such a categorization could

be made, false (and truthy) speech is protected by the

First Amendment, especially if it’s political.

In United States v. Alvarez, this Court held that

there is no “general exception to the First

Amendment for false statements.” 132 S. Ct. at 2544.

In that case, the speech was entirely false, and there

was no reasonable way to interpret it as truthful. Yet

if Alvarez confirmed that the First Amendment

protects even blatant lies made in the process of

campaigning for office, surely it protects spin,

parody, and truthiness.

In declaring unconstitutional an equivalent ban

on false campaign speech, the Washington Supreme

Court held that the government’s claimed interest in

prohibiting false statements of fact was invalid, in

part because it “presupposes the State possesses an

independent right to determine truth and falsity in

political debate, a proposition fundamentally at odds

with the principles embodied in the First

Amendment. Moreover, it naively assumes that the

government is capable of correctly and consistently

negotiating the thin line between fact and opinion in

political speech.” Rickert v. Pub. Disclosure Comm’n,

168 P.3d 826, 849-850 (Wa. 2007).

This Court has held that as “neither factual error

nor defamatory content suffices to remove the

constitutional shield from criticism of official

conduct, the combination of the two elements is no

less inadequate. This is the lesson to be drawn from

the great controversy over the Sedition Act of 1798.”

N.Y. Times v. Sullivan, 376 U.S. 254, 273 (1964). By

the same logic, false and defamatory statements

about politicians’ backgrounds—including their

voting records—are also constitutionally protected.

Statements that are merely false, and not inherently

defamatory, must therefore also be protected.

Ohio’s law explicitly prohibits not merely

defamatory falsehoods, but all of them—including

the sort of self-promoting lies that this Court held to

be constitutionally protected in Alvarez. And not only

does it make no distinction between defamatory and

non-defamatory statements, but the petitioners’

allegation could not have been inherently defamatory

given that more than 78 percent of Americans favor

legal abortion in at least some cases.

2. This case began with a claim—“Steve

Driehaus voted to fund abortions”—that certainly

could have caused consternation if uttered at a bar or

dinner party. Surreally, it ended up before the U.S.

Supreme Court. Even worse, there is no question

whether Driehaus voted for the bill at issue; the only

dispute is whether that bill actually provides federal

funding for abortions—which is a question of legal,

economic, and even theological interpretation.

Statements of this kind—call them truthiness,

spin, smear, or anything else—are as politically

important as their factually pure counterparts.

Democracy is based on the principle that the people

elect representatives who reflect their beliefs and

values, and whom they trust. Beliefs drive

democracy—not some truth as adjudged by Platonic

guardians—and there is no law that could make it

Gallup.com, Abortion,

http://www.gallup.com/poll/1576/abortion.aspx (last visited Feb.

28, 2014) (latest poll, from May 2013: 26 percent favoring legal

abortion always, 52 percent sometimes, 20 percent never).

otherwise. Those voters who believed that the

Patient Protection and Affordable Care Act provides

federal funding for abortion-on-demand (as many do)

were told by the Susan B. Anthony List that one

candidate had voted in favor of that law. The voters’

beliefs were more important and relevant than the

technical truths about the underlying legislation.

The Ohio law extends far beyond disputes over

interpretation or implication. Its broad language also

criminalizes rhetorical hyperbole and political satire.

If, instead of a billboard reading “Driehaus voted for

federally funded abortion,” the petitioners had

erected a billboard that said “Driehaus is a baby

killer” the law would apply with equal effect. All the

statute requires is: (1) that the statement be false;

(2) that the speaker knew the statement was false, or

spoke with reckless disregard for the truth; and (3)

that the statement was made with the intent of

impacting the outcome of the election. Ohio Rev.

Code § 3517.21(B) It is thus apparently illegal in

Ohio for an outraged member of the public to call a

politician a Nazi or a Communist—or a Communist

Nazi, for that matter. That is no exaggeration: the

law criminalizes a misstatement made in “campaign

materials,” which includes “public speeches.” Id.

And it is irrelevant that the law is limited to

cases where the statements were made “knowingly”

or with reckless disregard for the truth. It would not

be a total defense to any charge under the law to

simply state, “I honestly thought this was true.”

Instead, some fact-finder (whether the OEC, a judge,

or a jury) will have to determine (1) whether the

statement was false, and (2) whether the defendant

knew it was false, or spoke recklessly.

The law also stifles, chills, and criminalizes

political satire. For example, it is a crime in Ohio for

a late-night talk-show host to say: “Candidate Smith

is a drug-addled maniac who escaped from a mental

institution.” Even satirists and speakers that are

clearly attempting primarily to entertain their

audiences are subject to prosecution if they intend or

expect their statements to impact how the audience

perceives a candidate. A publication like The

Onion—which regularly puts words in political

figures’ mouths, or makes up outlandish stories

about them—could be violating Ohio law by making

people think at the same time it makes them laugh.

3. This law is a paradigmatic example of a

content-specific speech restriction that the First

Amendment protects against. Why should a false or

exaggerated statement about a politician attract

government sanction, when that same statement

made about another public figure would not?

In Alvarez this Court expressed its concern that

upholding the Stolen Valor Act “would endorse

government authority to compile a list of subjects

about which false statements are punishable.” 132 S.

Ct. at 2547. Yet that is precisely what Ohio’s

legislature has done. While one subsection serves as

a catch-all prohibition on all “false” statements made

about a candidate, Ohio Rev. Code § 3517.21(B)(10),

the majority of the section is devoted to a specific list

of subjects about which false statements are

punishable, including: a candidate’s education (2),

work history (3), criminal record (4-5), mental health

(6), military service (7), and voting record (9).

But wait, there’s more! Refraining from stating

(arguable) falsehoods is not enough to stay clear of

violating the law. For example, the regulation of

statements concerning a politician’s criminal record

requires speakers to actively take steps to avoid even

the possibility of misinterpretation. If an Ohio

political candidate has been indicted a dozen times

on corruption and racketeering charges, you cannot

lawfully say “Candidate Smith has been repeatedly

indicted for corruption” without also saying how

those indictments were resolved. Ohio Rev. Code §

3517.21(B)(5). Even if this Court were to reverse

itself and hold that false statements are outside the

scope of First Amendment protection, there is no

question that truthful statements about candidates’

criminal records are “at the core of our electoral

process and of the First Amendment freedoms.”

Williams v. Rhodes, 393 U.S. 23, 32 (1968).

There is no reason why speech about these topics

should be subject to regulation by the state, or why

they should only be regulated for the benefit of

politicians as opposed to other public figures—like

actors, religious leaders, and famous athletes—who

are often lied about. See, e.g., Hustler Magazine v.

Falwell, 485 U.S. 46 (1988) (the First Amendment

protects magazine accusing religious leader of a

sexual relationship with his mother); Beckham v.

Bauer Publ’g Co., 2011 U.S. Dist. LEXIS 32269 (C.D.

Cal. Mar. 17, 2011) (a newspaper asserting that

famous soccer player had cheated on his wife with a

prostitute was protected by both the First

Amendment and anti-SLAPP statutes); N.Y. Times v.

Sullivan, 376 U.S. 254 (1964) (protecting false

statements about police officers’ conduct). Nor are

Ohio politicians so particularly thin-skinned that

they require protection that politicians in other

states do not. See, e.g., Judge Dismisses Libel Suit

Against Tenn. Senator, Associated Press, Apr. 26,

2013 (unreported case regarding allegations that a

politician’s opponent had been arrested on drug

charges).

“Politics are politics, and it’s a big boys’

and big girls’ game. That’s just the way it is.” Id.

(judge’s comments in dismissing the suit).

Those cases where the courts have allowed libel

suits based on spurious statements about celebrities

further demonstrate that the appropriate remedy

when it comes to lies about public figures is, if

anything, a civil suit. See, e.g., Burnett v. Nat’l

Enquirer, 144 Cal. App. 3d 991 (Cal. Ct. App. 1983)

(publisher can be held civilly liable for defamatory

and false speech); Eastwood v. Nat’l Enquirer, 123

F.3d 1249 (9th Cir. 1997) (fabrication of public

figure’s interview answers civilly actionable).

This Court has also limited the remedies states

can provide to subjects of false speech. It would be

incoherent if states were allowed to apply criminal

sanctions—as Ohio attempts to do here—for conduct

to which this Court has held the Constitution only

permits the attachment of compensatory liability.

See Gertz v. Robert Welch, 418 U.S. 323 (1974) (even

when the subject of false statement is not a public

official, liability for anything beyond actual damages

can only be established by proof of actual malice).

While the mere fact that the courts have not

recognized an exception to the First Amendment in

the past does not mean that such an exception does

not exist, this Court requires that those advocating

Available at

http://www.firstamendmentcenter.org/judge-dismisses-libel-

case-against-tenn-senator.

for such an exception show “persuasive evidence that

a novel restriction on content is part of a long (if

heretofore unrecognized) tradition of

proscription.” Brown v. Entm’t Merch. Ass’n, 131 S.

Ct. 2729, 2734 (2011). In Alvarez, this Court held

that the government had not proven a longstanding

tradition of restricting false statements made by or

about a political candidate. 132 S. Ct. at 2548. If the

historical record provides evidence for any

longstanding tradition in this regard, it is the

venerable practice of politicians’ lying about

themselves and each other with complete impunity.

III. THE PUBLIC INTEREST IN POLITICAL

HONESTY IS BEST SERVED BY PUNDITS

AND SATIRISTS

This country has a long and estimable history of

pundits and satirists, including amici, exposing the

exaggerations and prevarications of political rhetoric.

Even in the absence of the First Amendment, no

government agency could do a better job policing

political honesty than the myriad personalities and

entities who expose charlatans, mock liars, lambaste

arrogance, and unmask truthiness for a living.

Just two terms ago, this Court agreed whole-

heartedly with that sentiment:

The remedy for speech that is false is speech

that is true. This is the ordinary course in a

free society. The response to the unreasoned is

the rational; to the uninformed, the

enlightened; to the straight-out lie, the simple

truth. See Whitney v. California, 274 U. S. 357,

377 (1927) (Brandeis, J., concurring) (“If there

be time to expose through discussion the

falsehood and fallacies, to avert the evil by the

processes of education, the remedy to be

applied is more speech, not enforced silence”).

The theory of our Constitution is “that the

best test of truth is the power of the thought

to get itself accepted in the competition of the

market,” Abrams v. United States, 250 U. S.

616, 630 (1919) (Holmes, J., dissenting). The

First Amendment itself ensures the right to

respond to speech we do not like, and for good

reason. Freedom of speech and thought flows

not from the beneficence of the state but from

the inalienable rights of the person. And

suppression of speech by the government can

make exposure of falsity more difficult, not less

so. Society has the right and civic duty to

engage in open, dynamic, rational discourse.

These ends are not well served when the

government seeks to orchestrate public

discussion through content-based mandates.

Alvarez, 132 S. Ct. at 2550 (emphases added).

As Chief Judge Kozinski argued when Alvarez

was before the Ninth Circuit, a prohibition on lying

devalues the truth: “How can you develop a

reputation as a straight shooter if lying is not an

option? Even if untruthful speech were not valuable

for its own sake, its protection is clearly required to

give breathing room to truthful self-expression,

which is unequivocally protected by the First

Amendment.” United States v. Alvarez, 638 F.3d 666,

675 (9th Cir. 2011).

No one should be concerned that false political

statements won’t be subjected to careful

examination. As this Court said in Brown v. Harlage,

“a candidate’s factual blunder is unlikely to escape

the notice of, and correction by, the erring

candidate’s political opponent. The preferred First

Amendment remedy of ‘more speech, not enforced

silence,’ thus has special force.” 456 U.S. 45, 61

(1982). Recent technological advancements mean

that statements by or about candidates will not just

attract the attention of his or her opponents—

instantly—but that of investigative journalists and

professional fact checkers.

Politicians who are caught lying about

themselves or others regularly attract more attention

from the press than the subject of the original lie.

The typical outcome is that the lie or cover up

becomes more important than the original accusation

or offense. And that dynamic predates smartphones

and their latest “apps.” The impeachment of

President Clinton was not based on any sexual

activities he might have engaged in with Monica

Lewinsky, but over the attempt to cover it up.

Similarly, President Nixon’s resignation was

prompted by his obfuscations rather than his

orchestration of a third-rate burglary. And if this

Court isn’t yet convinced of this point, amici have

but two words more on the subject: Anthony Weiner.

If Ohio’s concern is that there are abundant lies

being told in campaigns that escape media notice—

and cannot be proven in a civil defamation suit—

wouldn’t that same lack of evidence hamstring

prosecution under Ohio Rev. Code § 3517.21? Anyone

who could fabricate enough evidence to mislead all of

the fact-checkers and investigators who scrutinize

his fables could surely evade a charge under this law.

Adding further penalties will not dissuade

successful and talented liars. The only way that such

a law could offer the public greater protection from

untruthful speech—accepting for the sake of

argument that such protection is lawful, desirable,

and necessary—would be if it adopted lower

standards of proof than those required by civil

defamation suits or newspaper editors.

There is no lie that can be told about a politician

that will not be more damaging to the liar once the

truth is revealed. A crushing send-up on The Daily

Show or The Colbert Report will do more to clean up

political rhetoric than the Ohio Election Commission

ever could.

CONCLUSION

Criminalizing political speech is no laughing

matter, so this Court should reverse the court below.

Respectfully submitted,

LYA SHAPIRO

Counsel of Record

Cato Institute

1000 Mass. Ave., NW

Washington, D.C. 2000

(202) 842-0200

[email protected]

February 28, 2014