Pinocchio for governor.

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Good News for Campaigns: Go Ahead and Lie

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Tired of campaign lies and the lying liars who tell them? You’ll be sorry to hear that an Ohio law that prohibited false statements about a candidate for office was struck down this week by the U.S. Court of Appeals for the 6th Circuit, some 25 years after it was upheld by the same court.

The decision is probably correct in light of the U.S. Supreme Court’s expansive new free-speech precedent. But it’s worth pausing to note just how far the courts have gone in protecting falsehood.

The Ohio law, now defunct, worked like this: In response to a false statement about a candidate or the candidate’s position, anyone could file a complaint with a state commission. So long at it wasn’t too close to election time, the body first did a quick and dirty preliminary hearing to see whether there was probable cause to think the statement was false. If the election was imminent, or if the preliminary hearing found cause to go forward, the commission held a full hearing. If it found the statement false, the commission referred the person who had made it to prosecutors who could choose to bring charges that carried the punishment of up to six months’ jail time or $5,000 for a first-time loser.

In 1991, the 6th Circuit considered the law’s constitutionality, and upheld it. Its theory was that the First Amendment protects speech that has social value, and knowingly false statements about candidates for office don’t.

Justice Oliver Wendell Holmes famously wrote that the First Amendment doesn’t protect falsely shouting “fire” in a crowded theater. The 1991 appeals court thought that false campaign speech was like that. In classic Holmesian free-speech terms, we might say that instead of contributing to the marketplace of ideas, knowingly false statements about candidates distort that marketplace.

Ordinarily an appeals court is bound by its own precedent, so you’d think the 1991 case shouldn’t be reversed. But the 6th Circuit reasoned that the law of free speech had changed.

In particular, the court focused on the 2012 case of U.S. v. Alvarez. The case involved a challenge to the federal Stolen Valor Act, which made it a crime to falsely claim you have military decorations that you don’t actually have, such as the Medal of Honor.

In the Alvarez case, the Supreme Court first held that false speech wasn’t categorically excluded from free-speech protection. It went on to say that the Stolen Valor Act was unconstitutional. In case you were wondering, now you can lie about any military decorations you want without fear of prosecution.

Having determined that the First Amendment applied to the Ohio law, the 6th Circuit then subjected it to strict scrutiny, the most exacting form of constitutional analysis. In free-speech law, strict scrutiny is almost (but not quite) the bourne from which no traveler returns. If the courts apply it, the law is almost always struck down.

To survive strict scrutiny, a law must serve a compelling government interest and be narrowly tailored to doing so. The appeals court started well, acknowledging that Ohio has a compelling interest in defeating fraud and falsehood in electoral campaigns.

But the court held that the Ohio law wasn’t narrowly tailored, for a laundry list of reasons.  The most important was the last.

The court said the law was over-inclusive because the preliminary hearing might find probable cause to proceed against a campaign that would ultimately be found not to have broken the law, thus undermining “the integrity of the elections.”

At the same time, the court said the law also under-inclusive, because it might not “timely penalize those who violate it” and because it doesn’t “provide for campaigns that are the victim of potentially damaging false statements.”

What the court was really saying was that, even carefully and narrowly redrawn, the law would still be unconstitutional. It can’t be re-enacted, no matter what.

Given current Supreme Court doctrine, that’s almost surely right. The result reflects the justices’ growing free-speech absolutism.

At one time, the court might’ve protected falsehood by saying that it’s too hard to tell truth from lies, or that punishing lies will deter some true speech. These are instrumental reasons to protect falsehood.

But the doctrine now increasingly treats falsehood as inherently worthy of protection, not just for instrumental reasons but also because lies are part of the universe of self-expression. Why else subject restrictions on false speech to strict scrutiny?

Holmes would be mystified to hear that a ban on falsely shouting fire in a crowded theater might be unconstitutional today. Yet by the 6th Circuit’s logic, such a ban would be over-inclusive because it might punish people who are actually telling the truth. And it would be under-inclusive because it wouldn’t punish everyone and because it provides no remedies for those who get trampled. The Supreme Court might well agree. Think about it the next time you sit down in a theater -- or when you hear a candidate lying about the competition.

  1. If you’re keeping score, the five reasons were: “(1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net