# PJ O'Rourke files amicus brief in SCOTUS; defends "truthiness" as protected by the First Amendment **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 5, 2014, 1:39pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413 "2014-04-05T13:39:34Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 5, 2014, 1:39pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/1 "2014-04-05T13:39:34Z")
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: SUSAN B. ANTHONY LIST, Petitioners, v. STEVEN DRIEHAUS, Respondent: [BRIEF OF AMICI CURIAE CATO INSTITUTE AND P.J. O’ROURKE IN SUPPORT OF PETITIONERS](http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-193_pet_amcu_cato-pjo.authcheckdam.pdf) 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: > [@](#): > > While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises. And footnote 15, with a little jab at Chief Justice Roberts: > [@](#): > > 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. 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: > [@](#): > > And if this Court isn’t yet convinced of this point, amici have but two words more on the subject: Anthony Weiner. And the conclusion: > [@](#): > > Criminalizing political speech is no laughing matter, so this Court should reverse the court below. Very effective advocacy, and also fun to read. ---
**Author:** ![MichaelEmouse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/michaelemouse/32/101_2.png) [@MichaelEmouse](https://boards.straightdope.com/u/MichaelEmouse)\ **Post date:** [April 5, 2014, 1:55pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/2 "2014-04-05T13:55:08Z")
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. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [April 5, 2014, 3:11pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/3 "2014-04-05T15:11:11Z")
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](https://en.wikipedia.org/wiki/United_States_v._Alvarez)), I doubt they’ll uphold a statute that limits political fibbing. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [April 5, 2014, 4:36pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/4 "2014-04-05T16:36:54Z")
> [@Northern\_Piper](#): > > And footnote 15, with a little jab at Chief Justice Roberts :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](http://en.wikipedia.org/wiki/Food_libel_laws) next?) That aside, I had a look at [the statute](http://codes.ohio.gov/orc/3517.21) 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. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [April 5, 2014, 4:47pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/5 "2014-04-05T16:47:10Z")
When is the Carbolic smokeball company’s brief due? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 5, 2014, 5:09pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/6 "2014-04-05T17:09:10Z")
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. ---
**Author:** ![Pixel\_Dent](https://avatars.discourse-cdn.com/v4/letter/p/bc8723/32.png) [@Pixel\_Dent](https://boards.straightdope.com/u/Pixel_Dent)\ **Post date:** [April 5, 2014, 7:51pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/7 "2014-04-05T19:51:57Z")
\ 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? \ 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. ---
**Author:** ![MsRobyn](https://avatars.discourse-cdn.com/v4/letter/m/90ced4/32.png) [@MsRobyn](https://boards.straightdope.com/u/MsRobyn)\ **Post date:** [April 5, 2014, 8:11pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/8 "2014-04-05T20:11:56Z")
> [@Little\_Nemo](#): > > 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. That’s not how I read the brief. 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. ---
**Author:** ![Penfeather](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/penfeather/32/384_2.png) [@Penfeather](https://boards.straightdope.com/u/Penfeather)\ **Post date:** [April 5, 2014, 10:36pm UTC](https://boards.straightdope.com/t/pj-orourke-files-amicus-brief-in-scotus-defends-truthiness-as-protected-by-the-first-amendment/685413/9 "2014-04-05T22:36:30Z")
I thought O’Rourke had long since drunk himself to death.