PJ O’Rourke and the Cato Institute have filed an amicus brief in a SCOTUS case involving an Ohio statute that appears to try to require that statements made by and about politicians during an election campaign be true:
While the brief was filed by counsel, I think it’s pretty clear that Mr O’Rourke had a hand in it as well.
See footnote 14, for example:
And footnote 15, with a little jab at Chief Justice Roberts:
And, in making a serious argument that we can rely on political opponents and social media to uncover false statements and unsavoury conduct by politicians, this little gem at the end:
Well-intended statute but can of worms. Especially since a lot of attacks are phrased in such a way that they’re unfalsifiably connotative (“My opponent is unpatriotic and doesn’t believe in strong values”) or technically true but misleading (“My opponent wants to soften laws on sex offenders” when he wants to take streakers and such off the sex offenders’ list).
The dishonesty in US politics is an issue but that law isn’t right for it.
Very interesting. If SCOTUS is going to strike down a law that dings people who demonstrably lie about previous military service (United States v. Alvarez - Wikipedia), I doubt they’ll uphold a statute that limits political fibbing.
:dubious: Do you really want to poke at the CJOTUS when petitioning before the Court?
His point of course is that it would be only a very slight slippery slope to move on to penalize any sort of derision or deprecation of something that has been “already ruled to be so”, but still… (How about somebody goes against "product disparagement" laws next?)
That aside, I had a look at the statute and it seems this was adopted as a subsection within a series of articles about various campaign “dirty tricks” (including such things as planting moles in the other campaign; or advertising a challenger as an incumbent with a pitch to “reelect”, when they don’t currently hold that office). From the source however it looks like this is an almost 19 year old law. It took that long for someone to take it this far :smack: Interestingly it seems the trial court intended to dismiss the case due to no harm having happened or being moot or something of that nature but this time the complainants insisted.
The whole notion that you may be forbidden use of half-truths, equivocation, hyperbole or dogwhistles to cast you political opponent in a negative light (or to exalt yours), under penalty of law, does have a potentially too burdensome chilling effect. Among the footnotes and references I’m surprised they did not bring up Gospel of John, 18:38 – And what is “truth”?
That said, CATO/O’Rourke, IMO, do not do their brief any favors by so energetically embracing “truthiness”. That’s Colbert’s gag, dudes.
I think the Cato brief is making a strawman argument. They’re claiming the right to satire is under attack. This isn’t true. Nobody is attempting to outlaw political satire. Nobody is trying to tell people like Jon Stewart or Stephen Colbert or P.J. O’Rourke they can’t make fun of politics and politicians. The law they’re supposedly talking about only regulates political campaigns.
Now whether political campaigns should be held to some kind of truth in advertising standard is a legitimate issue for debate. But the Cato Institute isn’t advancing that debate by their “truthy” claims.
<Justice Black>
If only the framers hadn’t used such confusing language when they wrote “Congress shall make no law… abridging the freedom of speech or of the press.” What could the words “no law” possibly mean?
</Justice Black>
Then again, I’m sure if the framers knew that in the future people would lie they wouldn’t have included that in the bill of rights.
Basically, Cato and O’Rourke are arguing three general points.
The first is that the Ohio law is overbroad in that it has the potential allow for the prosecution of anyone who utters a falsehood that has the potential to influence the outcome of an Ohio election. This includes satirists like O’Rourke, Colbert, The Onion, and whoever else makes fun of politicians by putting words into their mouth. If a candidate is butthurt about something said about him, the satirist can be prosecuted under the law, and O’Rourke and Cato are saying that, given the historical nature of political satire, satirists shouldn’t have to risk prosecution.
The second – and this is where the “truthiness” comes in – is that claims can be 100% technically accurate and still wrong or unfair because they are generally subjective and rely on personal perspective. If my candidate supports removing streakers and people who got tickets for peeing on the side of a building from the Megan’s Law list, I may see that as “common sense”; you may see it as “being soft on sex offenders”. Same position, accurately reported, different perspectives.
The last is that there is a legal mechanism in place for defamatory claims, and that is in civil court, where the other slander and libel cases are heard, not criminal court.
The whole megillah basically comes down to the argument that this law is pointless and needs to be overturned.