Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
February 6, 2016

Can You Lie in Politics? Supreme Court Will Decide

Justices will consider a case about lying in politics, stemming from Chabot's 2010 campaign. (Bill Clark/CQ Roll Call File Photo)

The Supreme Court will consider a case about lying in politics, revisiting a fight from Chabot’s 2010 campaign in Ohio. (Bill Clark/CQ Roll Call File Photo)

The Supreme Court has made pretty clear that putting your money where your mouth is deserves broad protection as a form of free political speech. The justices are about to consider whether outright lying in a campaign deserves a similar First Amendment shield.

The court’s recent decisions easing the flow of generous campaign contributions already shifted the electoral landscape. If the court finds that even the most patently outrageous statements about candidates may not be barred by law, those two decisions combined could expand the rhetorical battlefield of the midterm elections and raise the attack ad volume as never before.

With Congress in the middle of its spring recess, few if any members are expected to attend the April 22 oral arguments. But they will all surely have their ears tuned for word about the decision, expected by the end of the term in June.

Groups at both ends of the ideological spectrum are challenging an Ohio law, on the books since the 1970s, that forbids candidates, issue groups or anyone else from knowingly or recklessly making false statements about someone on the ballot — whether the untruths are intended to help elect or defeat the candidate. Fifteen other states similarly criminalize “false” political statements, briefs in the case say, but this is the first constitutional challenge against one of those laws that’s made it to the Supreme Court.

The dispute started during one of the hottest House races in the country in 2010 — a rematch in a swing district covering western Cincinnati and the adjacent suburbs between freshman Democrat Steve Driehaus and the Republican he’d ousted two years before, Steve Chabot.

A group organized to elect candidates opposed to abortion, the Susan B. Anthony List, sought to rent space on a billboard declaring “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” but the sign’s owner called off the deal after the congressman filed a complaint with the Ohio Elections Commission alleging the message violated the false statements law.

SBA List said it was on solid ground because the congressman had voted to enact the health care overhaul, which anti-abortion groups interpret as permitting tax dollars to be spent on the procedure. Even after President Barack Obama signed an executive order saying that insurance plans sold on the new health exchanges could not spend any of their federal subsidies on the vast majority of abortions, exceptions remained in cases of rape, incest or when the pregnant woman’s life was in danger.

Driehaus, who cultivated a socially conservative record, said in his legal brief that the “defamatory meaning” of the billboard was clear: to falsely portray him as “a hypocrite who abandoned his principles and his constituents.”

He dropped his complaint after losing that fall to Chabot, who still holds the seat. But SBA List, since joined by the American Civil Liberties Union as well as some tea-party-like organizations, filed a federal lawsuit alleging the Ohio law’s threat of prosecution was an unconstitutional infringement on free speech.

Government officials have no business seeking to arbitrate the truthiness of the charges and counter-charges that fly back and forth in advertisements, stump speeches and debate exchanges, SBA List’s brief to the justices said. That’s because the process can too easily become “politicized, manipulated and abused, thereby causing profound harm to truthful speakers — and the entire democratic process.”

The plaintiffs are hoping to bolster their cause by likening the Ohio statute to a 2005 law that made it a federal crime to lie about receiving military honors or decorations. Two years ago, the justices voted 6-3 to strike down that “Stolen Valor Act” as a violation of the First Amendment.

But as is the case so often, the court has a wide opening to decide the case without addressing the big constitutional question. It could rule only on the preliminary procedural question of whether Susan B. Anthony List may press its arguments in the lower courts because of its fears about getting in trouble in the future, or has lost standing to sue because it’s no longer threatened with prosecution over the billboard.

If the justices are looking for guidance from the state of Ohio, they are going to find it — in contradictory stereo. State Attorney General Mike DeWine has taken the extraordinary step of producing arguments on both sides of the case.

One of his briefs says the law should be left alone on the narrow standing grounds. That argument is that the anti-abortion group didn’t see its free speech rights curbed because the Driehaus complaint went away, and there is no way to prove it’s going to run afoul of the statute by reviving the Obamacare-finances-abortion line of attack this year.

The other brief says the law should be struck down on constitutional grounds. Not only does it allow “the state’s legal machinery to be used extensively by private actors to gain political advantage,” that argument says, but the law “fails to provide adequate safeguards (including prompt judicial review) against the chilling of political speech.”

SCOTUSblog, a website that covers the Supreme Court exhaustively, says the last time something similar happened was in 1975, when the court was considering Buckley v. Valeo, its landmark campaign finance case. The Ford administration simultaneously argued for and against the constitutionality of the recently enacted campaign contribution and spending limits.

DeWine has been a fixture in Republican circles for more than three decades in Ohio and on Capitol Hill. He served four terms in the House, a term as lieutenant governor and then two terms in the Senate before losing in 2006 to Democrat Sherrod Brown. But he started a comeback with his election as attorney general in 2010. And, expecting he’ll win a second term this fall, at age 67, he’s already readying plans to run for governor in four years.

In other words, DeWine has been not only protected but also constrained by the political falsehoods statute as much as anyone. That may explain why he can’t make up his mind about what the high court should do before he runs his next race.

  • pitch1934

    There is no longer any truth in advertising, why should there be truth in politics?

    • cheshire572

      Politics should (not that we do) be held to a higher standard or we will continually get what we now have. Or are you saying you accept your Representative being a liar is ok with you?

      • pitch1934

        Just a little snarkism on my part. Hey, new word. I have never see SNARKISM in print.

  • Gyst53

    What do Slander and Libel have to do with Freedom of Speech? Lying will always be lying and as Flip Wilson said….”A lie is as good as the truth if you can
    find someone who believes it”!

  • Rick Caird

    While I realize that whether a statement is a lie or a fact is open to interpretation, the more lies we get from politicians, the less respect the citizens have for politicians. This seems to be an attempt to reduce the most egregious of lies and so we are better off than if we allow unfettered lying.

    • Floyd Massey

      I’m sorry, I do not believe whether a statement is a lie or a fact is open to interpretation. A lie is a lie no matter how you sugar coat it.

      • Rick Caird

        Not so Floyd. Most political issues are not black and white. They are the various shades of gray and one part can be emphasized over another part.

      • johnnyangel10

        Glad you said that. Marxists lie that their liberals! Glad you agree .

        • bamcintyre

          And conservatives pretend that they are Christians.

          • GT Buzz

            I don’t pretend and I’m conservative and a Christian, you really have a problem lib. Too much hate, why don’t you practice what you preach, TOLERANCE

  • Nicko Thime

    They will make the decision that best benefits the few. Same as every Roberts Court decision.

  • Kevin G.

    If politicians aren’t allowed to lie, the silence will be deafening!

  • JP

    The briefs are public. I would encourage reading them. In Ohio’s case there is a preliminary review and then a full review months later. The problem the briefs cite is that just the fact that the preliminary review allows your case to proceed forward may cause people to assume that the disputed claim was actually false, even if by the full hearing after the election it is found to be true. We don’t want lies in politics but we also don’t want people filing bogus claims just to shut up their opponents. So I can see why DeWine would be of two minds here.

  • Mark Mattingly

    You know how to tell if a Politician is lying right?

    If his mouth is making a noise it is most likely a lie and if it is coherent it is 99.95% a lie lol


    “Two years ago, the justices voted 6-3 to strike down that “Stolen Valor Act” as a violation of the First Amendment.” This is a total breakdown of a LAW that was worthy, I earned ALL of my Medals and to think some worthless war protestor could wear them and portray himself as someone worthy is NOT free speech it is fraud and should be treated as such.

    It should be JAIL for these fakes just as it should be for Political lies from ALL sides. Truth in politics should be hand in hand rather than the joke I told which has become truth in action from current administration…


    • Ragtaghorde

      The vast majority of posers I have come across have not been “worthless war protesters” but rather losers with low draft numbers, or influential daddies, or boot camp washouts who want to polish their image as macho patriots without having served the time.

  • Mark Christol

    The radical GOP group that got the ball rolling was originally accused of lying in their Tweets.
    That case got thrown out due to procedural goofs I think & then they latched onto the SBA suit.

  • Mike Brafford

    If you want to keep your policy you can, if you want to keep your doctor you can – Period.
    You mean being able to hold a politician responsible for the lies told – is wrong?

    • MPBulletin

      Hopeful, optimism is different than lying Mikey.

  • leftdailey

    Too ironic that this law emanates from Ohio, where during the 2012 election, Mitt Romney sponsored ads with the bald-faced lie that General Motors was moving its jeep production plant to China. He did this before it was exposed as a complete law. He did this after General Motors proved that the ad was a complete lie. Unbelievable, except it happened.

    • rightalways

      General Motors was moving Jeep? You’d think Chrysler would have had some input into that decision!? Because Chrysler did announce they are going to build Jeep vehicles in China. This information is even available at Huffington Post for those of you who are trying to be willfully ignorant of the facts.

      • leftdailey

        I have taken your comment and, unfortunately your vitriol, seriously. I did a little research and concluded the following, which your word choices make me think you know too. During the campaign, Romney twisted the facts of Chrysler’s announced plans to re-open jeep operations in China to accuse Chrysler, and Obama of taking jobs from Ohio and outsourcing them to China – when the truth was that Chrysler was expanding its jeep-producing operations in Ohio. One could argue that Romney never explicitly said “Obama financially supported outsourcing to China,” but there is no question that Romney’s remark, “Chrysler is moving all Jeep production to China,” is an outright lie. I did make the mistake of saying this issue was about General Motors, when, as you pointed out, it is Chrysler (yes, 30% owned by Fiat), not general motors that owns Jeep. I conflated Romney’s untruths re Chrysler and Jeep with Romney’s major lie – also run repeatedly in radio ads in Ohio – which was about General Motors, jobs, and China. Romney not only accused Obama of being responsible for the loss of the 15,000 GM jobs that took place during the bankruptcy/recession (a fact-prisiming maneuver common to both sides in all elections), but he also stated, “The loss of those 15K jobs means 15K more jobs for China,” an allegation that was patently false and that was flatly denied by the Chairman of GM. After the Romney campaign was repeatedly and publicly given these facts, it continued to aggressively advertise these falsehoods. It is my memory that, when questioned about this, Stu Stevens said some version of, “It’s working…riling people up in Ohio, so we’ll keep it up.” I’m sure this is more than you ever wanted in response to your comment, which I actually appreciated. Reading about this made me proud again of the people of Ohio, who had the good Midwestern sense not to heed his falsehoods.

  • Cal Quelus

    Civilization developed as our ancestors discovered the ideas and institutions that enabled small bands to become tribes, chiefdoms, and nations.

  • johnnyangel10

    Another site who should know better,Roll Call,with a deceptive banner ! Wake up Amerika !!

  • Calirodan

    If this goes through, our only choice will be to completely tune out. Let the wealthy spend themselves into oblivion propagating lies and refuse to listen.

    If this goes through, I will boycott any website or station that airs political ads. I already don’t get cable T.V. But I will let Hulu and Youtube, and any other of the providers I use through my Roku box know that I will cancel my accounts if any of their ads are political.

  • Laurie Miller

    I think we’re safe assuming at least half of it is lies, no matter what…

  • Murph Johnston

    By assaulting private property, collectivism channels our aggressive instincts outward, resulting in modern-day systems of masters, serfs, and plunder — more commonly known as socialism, communism, and the welfare state.

  • MPBulletin

    Purposeful, outright lying just to get votes should be illegal OR those perpetrating these lies should be held accountable.
    These groups want the SCOTUS to make legal to lie to the American public. Elections are dirty enough without making lies legal.

  • Charles Hill


  • bamcintyre

    Corporations are people, my friend, and First Amendment “Free Speech” — oh yeah, “Bengazi.”

  • Daniel Gabus

    The Founders actually expected that our government would degrade to this level and gave us Article 5 in the Constitution which allows the states to control the out of control federal government. Support your state’s representatives and senate and force the federal government to balance the budget, get rid of the IRS, adopt a flat tax to eliminate the House and Senate’s ability to pander to the lobbyists and crony capitalists and return control of our government back to the states. Read Mark Levin’s book The Liberty Amendments. It is a great start …

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