Ohio's Law Against Political Lying Heads To Supreme Court

Apr 17, 2014
Originally published on April 17, 2014 10:38 am
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This is TELL ME MORE from NPR News. I'm Celeste Headlee. Michel Martin is away. Campaign season is right around the corner, and that means you'll probably see lots of political ads on a TV screen near you. And from time to time, I've heard campaign ads maybe stretch the truth or don't tell the exact truth all the time. It's been known to happen.

Well, Ohio tried to put an end to that with a law that bans false statements about political candidates or issues during a campaign. And that law is now headed to the Supreme Court. We wanted to learn more, so we're joined by Sabrina Eaton. She's the Washington reporter for Cleveland's Plain Dealer, or so she says. She joins us by phone. Hi, Sabrina.

SABRINA EATON: Hi, how are you?

HEADLEE: I'm not trying to imply that you're lying about your title. We know that's true. But...

EATON: Well, anyone who googles me on the Internet could find that out, so. But, you know, I guess I could have mounted an elaborate plot and posted, you know, thousands of articles over the years just to convince you of that fact.

HEADLEE: That would be going quite a bit further, possibly, than merits. But let's talk about what started this. And it was a billboard that claimed that Obamacare...

EATON: Well, it basically claimed - it would have claimed it. The billboard ended up not going up because the candidate at issue, a fellow named Steve Driehaus who was a one-term congressman from the Cincinnati area, he threatened to sue the billboard company.

And it would've said, specifically, shame on Steve Driehaus. Driehaus voted for - in all caps - taxpayer-funded abortion. And in the Cincinnati area, that would be a bad thing. And this had to do with the Affordable Care Act. Groups that oppose abortion insisted that the Affordable Care Act would allow tax dollars to pay for abortions. And a lot of antiabortion Democrats, such as Driehaus and Bart Stupak of Michigan and Mary Kaptur from the Toledo area, they were very adamant that that not be part of the bill.

And so President Obama signed an executive order that specifically said that no tax dollars would be used to pay for abortions, but that just was not adequate for many of the antiabortion groups who were very concerned about the law.

HEADLEE: But at issue here is whether or not banning campaign lies is in violation of the First Amendment - i.e., should we allow people to lie about politicians and politics, right?

EATON: Yes. And Driehaus filed the complaint under the Ohio law saying that this billboard would have violated that law because it's a lie. And of course, the people who posted it, they did not believe it was a lie. And the Ohio law says, basically, that you have to know that the thing is a lie when you post it, and it can't just be something that, like, you think is true but it happens not to be true.

But the group that wanted to post the billboard, the Susan B. Anthony List, they went to court over it claiming that Ohio's law was unconstitutional. And lower courts ended up throwing out the case because Driehaus withdrew his complaint against the Susan B. Anthony List prior to it being heard. So the Susan B. Anthony List was never actually adjudicated in violation of the law. So there was this jurisdictional question. And what the court may end up doing in this is saying you have to consider this, you know, even though they were not found guilty of violating the law.

They could also, of course, you know, issue some sort of a statement about whether the law is or isn't constitutional. But often the Supreme Court tries to kind of be a little more narrow in its decisions and might toss things back to the lower courts, which some observers think is what will happen here.

HEADLEE: Ohio is not the only state that has a law like...

EATON: There's at least 15 others.

HEADLEE: So let's assume the Supreme Court does in fact decide to rule on whether or not a law like this is constitutional or violates the First Amendment. That would affect those other 15 states would it not?

EATON: It would as a matter of fact, yes.

HEADLEE: So, I mean, I imagine that many people who look at billboards, are forced to look at billboards have campaign ads coming through all the time. Think it would be a positive thing to force them to tell the truth. Who is opposing this law?

EATON: A lot of people seem to think that it violates the First Amendment. The ACLU does. They filed the friend-of-the-court brief to that point. And it's kind of interesting because the ACLU is very supportive of women's rights to, you know, abortion and things of that nature. And so they're in league with this group that is very antiabortion and, in fact, was, you know - that was the point of the ad they wanted to do.

And there was also a very entertaining brief that was filed by the Cato Institute in a humorous - I guess he calls himself a political satirist. P.J. O'Rourke has had a lot of, you know, extremely, you know, funny tidbits in there where they were talking about famous lines from the presidents and others such as, "I am not a crook," "Read my lips, no new taxes," "I did not have sexual relations with that woman" and "Mission accomplished," you know, things like that, you know, I think that, you know, perhaps, they're truth...

HEADLEE: One could argue that they're lies. But on the other hand, this raises a good question. What you have there -"I'm not a crook" is a statement that, again, is up for debate.

EATON: Right.

HEADLEE: But "Read my lips, no new taxes" is a campaign promise. I mean, in order to find that to be a lie, you'd have to go back retroactively, right?

EATON: Right. And in fact, one of the other statements that O'Rourke brings up in this is if you like your health care plan, you can keep it. And, you know, that is a claim that the fact-finding group PolitiFact, you know, initially they found that it was true. But then subsequently after the Affordable Care Act was implemented, you know, it was found to be false. So, you know, the true falsehood of some of these claims can just kind of, you know, evolve over time.

HEADLEE: How has the law been tested in Ohio if it has?

EATON: What happens is, if you're found guilty of violating the law, it's a misdemeanor and you can pay, I think, a $5,000 fine. And I think there may be, like, a short-ish prison sentence is possible. But I don't know that anybody has been found guilty of that. I haven't really researched it much.

But what this does is I guess it gives candidates a chance to bring up that they think something is false. And the people who place these ads, you know, and who insist that they're true say that it has a chilling effect on their free speech.

HEADLEE: But - I mean, that's kind of the question, though, Sabrina. What do you think the effect has been? Has it made people be more truthful?

EATON: Well...

HEADLEE: She laughs.

EATON: I don't - you know - OK, a lot of my job involves covering political campaigns.

HEADLEE: Correct.

EATON: And I don't know that it really has had that much effect, no. And, you know, there's a lot of claims out there that I have felt are suspect over the years. And I don't know that the - that this Ohio law has really had much of a dent in it. I mean, sorry to say. That is my personal opinion, though.

HEADLEE: Sabrina Eaton, a Plain Dealer's Washington reporter. She joined us by phone. Sabrina, thanks so much.

EATON: OK, you're welcome. Transcript provided by NPR, Copyright NPR.