From Rosann Miller, the below brief says it all about why free speech has to remain free and easy and breezy, even if it’s not 100 percent true.
While my ARDC Tribunal strained to change the mind of Kathy Bakken that the Mary Sykes case was just sour grapes, the fact that an ARDC tribunal can find “misconduct” after reading a blog, is well, pretty much a ridiculous proposition.
The people I write about, the judges, lawyers, GAL’s and OPG’s running around the 18th floor put themselves into the limelight by just being there and acting as they do. No one can help it if their conduct repeatedly and openly follows the rule of Y when the law is X.
read on below and I can email anyone who want the brief the URL
SUMMARY OF ARGUMENT
“I am not a crook.”
“Read my lips: no new taxes!”
“I did not have sexual relations with that
“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
3 Monticello.org, Son of a Halfbreed Indian Squaw
squaw-quotation (last visited Feb. 28, 2014).
ponder, as Grover Cleveland was forced to, “Ma, ma,
where’s my pa?”4
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.
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 secularhumanist
professors of Chicano studies.
4 Answer: “Gone to the White House, ha ha ha!”
Elisabeth Donnelly, Ye Olde Sex Scandals: Grover Cleveland’s
Love Child, The Awl, http://www.theawl.com/2010/02/ye-oldesex-
5 Wikipedia.com, Truthiness,
http://en.wikipedia.org/wiki/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,
(last visited Feb. 28, 2014).
Everybody knows that the economy is better off
under [Republican/Democratic] 6 presidents—who
control it directly with big levers in the Oval Office—
President Obama is a Muslim.
President Obama is a Communist.
President Obama was born in Kenya.
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.
6 Circle as appropriate.
7 47 percent to be exact, though it may be higher by now.
8 Again, pick your truth.
9 Amici are unsure how much torture statistics can
withstand before they too run afoul of the law.
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 wellsuited
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.
10 Two Pinocchios out of five is OK, but three is illegal?
I. TRUTHINESS, INSINUATIONS, AND
ALLEGATIONS ARE A VITAL PART OF
In the hotly contested election of 1828,
supporters of John Quincy Adams called Andrew
Jackson a “slave-trading, gambling, brawling
murderer.” Mac 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 draftdodging,
Swift Boats, and lying about birthplaces14—
11 Available at
12 Monticello.org, James Callender,
13 Monticello.org, Thomas Jefferson and Sally Hemings:
A Brief Account, http://www.monticello.org/site/plantation-andslavery/
14 While President Obama isn’t from Kenya, he is a
Keynesian—so you can see where the confusion arises.
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.
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 selfcorrecting
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
15 Driehaus voted for Obamacare, which the Susan B.
Anthony List said was the equivalent of voting for taxpayerfunded
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.
4. Ohio’s law thus ultimately weakened the vibrancy
of the state’s political discourse.
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.
II. THIS COURT HAS ALREADY HELD THAT
TRUTHINESS, INSINUATIONS, AND
ALLEGATIONS ARE PROTECTED BY THE
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
16 Amici’s counsel has been to an Oxford Union debate;
the level of discourse is not always that high.
17 Compare Politifact.com, Obama’s Plan Expands
Existing System, Oct. 9, 2008, http://www.politifact.com/truth-ometer/
existing-system, with Politifact.com, Lie of the Year: ‘If
you like your health care plan, you can keep it,’ Dec. 12, 2013,
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.
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
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
18 Gallup.com, Abortion,
http://www.gallup.com/poll/1576/abortion.aspx (last visited Feb.
28, 2014) (latest poll, from May 2013: 26 percent favoring legal
abortion always, 52 percent sometimes, 20 percent never).
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
19 Available at
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 PUNDITS
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 wholeheartedly
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
Criminalizing political speech is no laughing
matter, so this Court should reverse the court below.
Counsel of Record
1000 Mass. Ave., NW
Washington, D.C. 2000
February 28, 2014