by Walter Brasch
"Gov. Tom Corbett, who claims he opposes legalization of marijuana, was seen behind a barn smoking weed. Just a-puffin' and a-grinnin'."
"Tom Wolfe was speeding and driving drunk through the streets of York. If he can't obey traffic laws, why would we think he'd obey the Constitution if elected Pennsylvania governor?"
"That commie socialist fascist Kenyan Muslim in the White House brought Ebola into the country to get rid of White opposition."
The first two campaign ads are completely false. No one--yet--has sent out those messages. The third one, also false, in various forms is now circulating on the Internet and in bars.
It really makes no difference if it's true or false. It's on the Internet, where lies, half-truths, and hyperbole compete with bloviating pundits on radio and TV pretend-news shows.
But now, paid ads--in every medium--may also be completely false, and protected by the Constitution.
The Supreme Court, in a 9--0 decision, extremely unusual for this Court that often decides cases by a 5--4 margin, determined that political ads are protected by the First Amendment.
The case began in Ohio in 2010, when the Susan B. Anthony List, a right-wing anti-abortion group, planned to rent a billboard and place a sign on it falsely proclaiming that Rep. Steve Driehaus, an anti-abortion Democrat, supported taxpayer-funded abortion because he had supported the Affordable Care Act, also known as Obamacare. The ACA doesn't allow taxpayer-funded abortion, except for cases of rape, incest, or medical emergencies. The billboard company refused to place the ad, fearing it was violating Ohio law against false political speech.
Driehaus filed a complaint with the Ohio Elections Commission to protest the SBA List intent, but withdrew his complaint after losing re-election. The SBA List, however, didn't celebrate; it demanded court rulings.
Both district and appeals courts ruled the issue moot because Driehaus had lost the election and, therefore, was not facing imminent injury. The List pushed forward, claiming the issue was a First Amendment matter.
The Supreme Court remanded the case to the District Court, citing the List had the right to challenge the Ohio law's constitutionality. In his ruling supporting the List, District Judge Timothy Black this past month, reiterated a philosophy advanced by John Milton in the 17th century that became a basis for the First Amendment. Judge Black determined, "The answer to false statements in politics is not to force silence [of lies] but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is." The fear is that government would intercede and ban ads, stifling free speech; this would be prior restraint, a definite First Amendment violation.