EagleTribune.com, North Andover, MA


January 21, 2014

Column: The truth about lying in politics

Lying by and about politicians is a regrettable and probably permanent feature of American democracy. But should it also be a criminal offense? The Supreme Court has agreed to hear an argument by an antiabortion group challenging an Ohio law that criminalizes false statements about candidates for public office. The justices should allow the group’s claim to proceed. Using criminal law to police truth in political debate is unnecessary and invites abuse.

The Ohio law prohibits false statements about a candidate if they are made knowingly or with reckless disregard of whether they might be false. If the Ohio Elections Commission decides the law was violated, it “shall refer” the matter to prosecutors.

During the 2010 election campaign, the Susan B. Anthony List, an antiabortion political action committee, planned to post an ad on billboards accusing then-Rep. Steven Driehaus, D-Ohio, of voting “for taxpayer-funded abortion” when he supported the Affordable Care Act. Driehaus filed a complaint with the commission under the false statement law, and fearing legal reprisals, the advertising company that owned the billboard space refused to post the ad.

The Susan B. Anthony List tried to challenge the constitutionality of the law, but the U.S. 6th Circuit Court of Appeals said that no “case or controversy” existed because the elections commission hadn’t made a final decision on Driehaus’ complaint and because the group couldn’t establish that it faced an “imminent threat” of prosecution.

The Supreme Court should allow the challenge to go forward. Citizens who believe a law violates their First Amendment rights ought to be able to make that case even if they aren’t in immediate danger of being prosecuted. And the Ohio law is constitutionally suspect, especially after a 2012 decision in which the Supreme Court struck down a law making it a crime to falsely claim to have received military honors.

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