March
26, 2014
By
P.J. O'ROURKE and ILYA SHAPIRO
In Ohio, it's a crime
to knowingly or recklessly lie about a political candidate or ballot
initiative. When the Susan B. Anthony List, an anti-abortion nonprofit,
attempted during the 2010 midterm elections to buy a billboard attacking
then-Rep. Steven Driehaus, who represented the state's 1st congressional
district, Driehaus’s lawyers invoked
Ohio law. And the billboard, which would have read, “Shame
on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion”—a reference to
the Affordable Care Act—never went up. In fact, Driehaus voted for
the landmark health-care bill only after President
Obama guaranteed that tax dollars would not be used to fund abortion.
After the election (which Driehaus
lost), the Susan B. Anthony List filed a federal lawsuit challenging the Ohio
law on free speech grounds. Next month, after several appeals, Susan B.
Anthony List v. Driehaus, No. 13-193 is due to be argued before the U.S.
Supreme Court. If the court decides that the nonprofit has standing to sue in
the first place, the case could have a big effect on what’s fair game during
campaign season.
In the amicus brief submitted to the court and published below with
their permission, political satirist P.J. O’Rourke and Ilya Shapiro of the Cato
Institute make the case—earnestly, albeit facetiously—for the importance of
protecting untruths, or “truthiness” in politics. What follows is perhaps the
most entertaining—if not the greatest—legal brief in American history.
—Elizabeth Ralph
No.13-193
In The
Supreme Court of the United States
Susan B. Anthony
List, et al., Petitioners
v.
Steven Driehaus, et
al., Respondents
On a Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
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
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
ishapiro@cato.org
Counsel of Record
Cato Institute
1000 Mass. Ave. NW
Washington, DC 20001
(202) 842-2000
ishapiro@cato.org
***
QUESTION PRESENTED
Can a state government criminalize
political statements that are less than 100% truthful?
***
TABLE OF CONTENTS
QUESTION
PRESENTED...............................................................................................i
INTEREST OF AMICI CURIAE.....................................................................................1
INTRODUCTION AND SUMMARY OF THE ARGUMENT......................................2
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
1. 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.
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
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 THE 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,2
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.”3
Or perhaps it should ponder, as Grover Cleveland was forced to, “Ma, ma,
where’s my pa?”4
2. Apocryphal.
4. Answer: “Gone
to the White House, ha ha ha!” Elisabeth Donnelly, Ye Olde Sex Scandals: Grover Cleveland’s
Love Child, The Awl.
In modern times, “truthiness”—a “truth”
asserted “from the gut” or because it “feels right,” without regard to evidence
or logic5—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.
5. Wikipedia.com, 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, (last visited Feb.
28, 2014).
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.
Everybody knows that the economy is
better off under [Republican/Democratic]6
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.
6. Circle as
appropriate.
Nearly half of Americans pay no taxes.7
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].8
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 lies9
is inconsistent with the First Amendment.
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.10
Ohio’s law blatantly violates the First
Amendment and directly conflicts with Alvarez.
This Court should terminate it with extreme prejudice.
***
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.” Max McClelland, Ten Most Awesome Presidential Mudslinging Moves Ever, Mother Jones,
(October 31, 2008).11
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.12
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.13
More recently, we’ve had discussions of
draft-dodging, Swift Boats, and lying about birthplaces14—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.
14. While
President Obama isn’t from Kenya, he is a Keynesian—so you can see where the
confusion arises.
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 attack15
by 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 4. Ohio’s law thus ultimately weakened the vibrancy of the
state’s political discourse.
15. 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.
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.16
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.
16. Amici’s counsel has been to an Oxford
Union debate; the level of discourse is not always that high.
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.”17
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.
17. Compare
Politifact.com, Obama’s Plan Expands Existing System,
Oct. 9, 2008, with Politifact.com, Lie
of the Year: ‘If you like your health care plan, you can keep it,’ Dec.
12, 2013.
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.18
18. Gallup.com, Abortion, (last visited Feb. 28, 2014) (latest poll, from
May 2013: 26 percent favoring legal abortion always, 52 percent sometimes, 20
percent never).
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 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).19 “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 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 PUNBITS 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,
Ilya Shapiro
Counsel of Record
Cato Institute
1000 Mass. Ave., NW
Washington, D.C. 2000
(202) 842-0200
ishapiro@cato.org
Counsel of Record
Cato Institute
1000 Mass. Ave., NW
Washington, D.C. 2000
(202) 842-0200
ishapiro@cato.org
P.J. O'Rourke is a political
satirist and an H.L. Mencken research fellow at the Cato Institute.
Ilya Shapiro is a senior fellow
in constitutional studies at the Cato Institute and editor-in-chief of
the Cato Supreme
Court Review.
