Libertarians Urge the Supreme Court to Allow ‘Lies, Insults, and Truthiness’ in Politics

Should telling the truth be a mandatory requirement in electoral
politics? The U.S. Supreme Court will tackle that question next
month when it hears oral arguments over an Ohio elections law which
makes it illegal to “post, publish, circulate, distribute, or
otherwise disseminate a false statement concerning a candidate…if
the statement is designed to promote the election, nomination, or
defeat of the candidate.”

The case of Susan B. Anthony List v. Driehaus arose in
2010 when the Susan B. Anthony List, a conservative anti-abortion
group, purchased billboard ads in Ohio charging incumbent
Democratic congressman Steve Driehaus with supporting “tax-payer
funded abortion” due to his vote in favor of the Patient Protection
and Affordable Care Act. Driehaus not only objected to that
characterization, he complained to the Ohio Elections Commission,
which soon ruled against the conservative group. The Susan B.
Anthony List is now asking the Supreme Court to rule in its favor
on First Amendment grounds.

In a provocative and entertaining friend of the court brief

recently filed with the U.S. Supreme Court, the libertarian
Cato Institute, in collaboration with libertarian satirist P.J.
O’Rourke, urges the Court to reject the Ohio law and come down
instead on the side of “lies, insults, and truthiness” in politics.
Here’s a sample of their argument:

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?…

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. 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.

All jokes aside, this is a serious issue. As the Cato/O’Rourke
brief observes, “It is thus apparently illegal in Ohio for an
outraged member of the public to call a politician a Nazi or a
Communist.” That sort of language may be offensive and outlandish,
but the First Amendment still applies to it.

Related: Reason.tv on “Attack Ads, Circa 1800.”