Here’s a quick summary of the case at hand, Susan B. Anthony List v. Driehaus:
Prior to the 2010 general election, Susan B. Anthony List (SBA List), a nonprofit, pro-life organization, announced that it intended to put up a billboard in the district of then-Congressman Steven Driehaus. The planned billboard would have asserted that Driehaus’s vote in favor of the Affordable Care Act amounted to a vote in favor of taxpayer-funded abortion. Citing threats of legal action by Driehaus’s counsel, the company that owned the billboard space refused to put up the ad. Driehaus filed a complaint with the Ohio Elections Commission alleging that SBA List violated Ohio’s campaign laws by making false statements about his voting record. SBA List filed an action in federal district court arguing that the Ohio statutes infringed upon its rights to free speech and association under the First Amendment. Driehaus withdrew his complaint upon losing his bid for re-election and subsequently moved to Swaziland for an assignment with the Peace Corps. The district court dismissed the suit by SBA List for lack of standing and ripeness. The U.S. Court of Appeals for the Sixth Circuit affirmed.
You can read a full list of filings with the nation’s high court at SCOTUS blog, but wow did my former Cato Institute colleague Ilya Shapiro and H.L. Mencken fellow, reporter, and satirist P.J. O’Rourke hit a home run with this brief (PDF) — even the footnotes are terrific:
http://www.georgescoville.com/wp-con...PM-347x600.png
On the merits, I of course agree with amici. Here are some hilarious and awesome highlights from the brief…
On the role of “truthy” speech in our political discourse
In modern times, “truthiness” — a “truth” asserted “from the gut” or because “it feels right,” without regard to evidence or logic — 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.
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.
On why government has no place preempting truthy speechIt 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 cross the line into falsehood.
On the effectiveness of laws in creating social orderSupporters 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. Not only does this Pollyannish 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.
On the Ohio law’s effect on political satire (pay attention if you love The Onion)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.
On what is the real ethos behind election law (including campaign finance reform)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 think-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). “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).
Finally, a short and sweet conclusion
Criminalizing political speech is no laughing matter, so this Court should reverse the court below.
The entire thing is a hair over 20 pages, and well worth your time — check it out. If you haven’t seen ReasonTV’s short video on attack ads throughout American history, narrated in part by another former Cato Institute colleague,Caleb Brown, feast your eyes:
http://www.youtube.com/watch?v=Y_zTN4BXvYI
(via fellow Belmont University alumnus Rob Martin)
*Update
My former Cato Institute colleague Nita Ghei says that another former Cato colleague, Trevor Burrus, also coauthored the brief, and Ilya Shapiro tells me Cato Institute Legal Associate Gabriel Latner also deserves credit.
http://www.georgescoville.com/2014/03/p-j-orourke-ilya-shapiro-cato-institute-amici-curiae-brief-susan-b-anthony-list-v-driehaus/
