Should the government be in the business of regulating speech in any manner? If so, to what degree? These are very heady questions that lie at the heart of how we think about our First Amendment. The American political left has long been seen as an advocate for the notion that the truth will emerge in a robust free exchange of ideas. Recent events have poked holes in this reputation.
In 2012 the Supreme Court considered a federal law that made it a crime for someone to falsely claim receipt of a military honor. They found that such a crime “chilled” free speech. At the time, I wrote:
Justice Kennedy claimed “permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.”
This is the crux of the matter…Slippery slope is taught in college as a fallacy, but First Amendment thought is, and ought to be, filled with slippery slope paranoia.
On Tuesday the Court will hear arguments in a case called Susan B. Anthony List v. Driehaus. Many states have adopted laws that allow the government to fine or imprison people who make false statements in political campaigns. This seems perfectly reasonable on its face. We are sick and tired of politicians and special interests lying to or misleading us. However, these states have given “truth commissions” (government bureaucrats) the authority to determine what statements are true or false.
The attorneys for Susan B. Anthony List, who sued under threat of punishment from such a law in Ohio, penned an op-ed in today’s Wall Street Journal:
The relevant question is thus not whether there is a constitutional “right to lie,” but rather whether the state may force citizens to defend the “truth” of their political critiques before bureaucrats who may well have been appointed by the politicians being criticized. Such a regime imposes substantial burdens on core political speech and therefore chills robust political debate.
The premise of the First Amendment is that the people should decide what is “true” and what is “false” in the political arena, and punish or reward political candidates at the ballot box. Political fact-checking is not a task for courts of law. Criminal penalties should not hang over the heads of speakers who disagree with their version of political “truth.”
Laws that penalize lying in political campaigns are rooted in noble intentions. But they lead to the creation of government “truth commissions” that belong in an Orwell novel. The Court should err on the side of free speech.