In court cases, sometimes the ruling is just even though the facts are anything but. And so it is in the case of Susan B. Anthony List v. Driehaus.
In a rare unanimous ruling, the Supreme Court held that the Susan B. Anthony List, an anti-abortion organization, has legal standing to sue regarding Ohio’s False Statement Law. The law makes it a criminal offense to knowingly or recklessly make false statements about a candidate—what ordinary people might call lying. The maximum penalty for making such lies in the context of an Ohio electoral campaign is a fine of $5,000 and six months in prison.
Ask any 5-year-old and, if they’re being honest, they’ll tell you lying is wrong. That doesn’t mean it should be illegal. And it certainly doesn’t mean that criminalizing false speech is constitutional. For this reason, the ACLU and other staunch defenders of the First Amendment filed amici briefs arguing that the Supreme Court should indeed allow the Susan B. Anthony List’s lawsuit to proceed.
To be clear, the Court did not rule as to whether the Ohio False Statement Law is constitutional—it simply ruled that the Susan B. Anthony List has legal justification in suing. And without a doubt, part of the reason that the Susan B. Anthony List has standing is because they lie.
In 2010, the Susan B. Anthony List wanted to run billboards arguing that Democratic Rep. Steven Driehaus had supported “taxpayer-funded abortion” because he voted for Obamacare. This is a flat-out lie. Nothing in the Affordable Care Act could remotely be possibly even a little bit construed as providing taxpayer funding for abortion—because the law, very simply, doesn’t do that. This claim, recklessly tossed about by those on the right, has been roundly dismissed by PolitiFact as false. In fact, there’s already a federal law—on the books since 1976—that prevents federal funds from being used to pay for abortions. Of course this hasn’t stopped anti-abortion activists from insisting otherwise, nor their Republican allies in Congress from introducing legislation that literally does the same thing as the laws already on the books.
Without a doubt, part of the reason that the Susan B. Anthony List has standing is because they lie.
So, for instance, under the Ohio False Statement Law, it would be entirely provable and thus legal to accuse House Republicans of wasting their legislative power by passing redundant legislation—because that statement is true. What about accusing a partisan political group of exploiting the virtues of our First Amendment in order to justify their very un-virtuous and ugly, outright lies?
“Groups who can’t win based off of the facts or the merit of their argument often resort to lying and deceiving the public. This now appears to be the primary strategy of the Susan B. Anthony List,” says Ilyse Hogue, president of NARAL Pro-Choice America. “The public, and the press, is now put on notice to not take anything that comes out of the SBA List organization as truthful or fact-based.”
It’s certainly not hard to imagine the Ohio law having a chilling effect on free speech and by extension, our democracy—especially in increasingly fast-and-furious electoral campaigns that by nature involve public figures who usually aren’t subject to standard, stringent libel laws. Plus smears and baseless accusations are the fuel of modern politics. That said, perhaps it shouldn’t be illegal to outright lie in a political campaign… but that doesn’t make it right. To even file this lawsuit in the first place, the Susan B. Anthony List had to admit it lied. The lying wasn’t an accident or even a momentary lapse in good judgment. It was conscious and deliberate. The ultimate constitutionality of the Ohio False Statement Law is still up in the air but what’s clear is that a right-wing organization put lying at the center of its campaign strategy—disappointing facts but increasingly unanimously common across the right.