Ohio law creates ‘ministry of truth’

Published 9:55 pm Monday, April 28, 2014

Just how far should the freedom of speech go? Does the First Amendment include the right to lie? Those are questions the U.S. Supreme Court could answer, if it takes up the question of an Ohio law banning “lies” from political advertisements.

No one likes lies and dirty politics. But the Ohio law is something worse — an obvious attempt to silence people, and to empower the government to determine what “truth” is.

“Supreme Court justices across the ideological spectrum seemed deeply suspicious Tuesday of an Ohio law that criminalizes the spreading of false information about a political candidate during a campaign,” the Washington Post reported last week. “Technically, the court was reviewing a decision by a lower court that an antiabortion group did not have the legal standing to challenge the constitutionality of Ohio’s law, which is similar to ones in more than a dozen other states. But the justices couldn’t resist giving a preview of their skepticism about what Michael A. Carvin, the Washington lawyer representing the group Susan B. Anthony List, called Ohio’s ‘ministry of truth’ during oral arguments.”

And that’s the real problem with the Ohio law (which is the model for several bills being proposed in Congress). If the government can ban lies, then the government must first have the power to determine what’s true.

Justice Anthony Kennedy nailed it when he questioned Ohio’s solicitor general.

“Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?” he asked.

Even Justice Ruth Bader Ginsburg gets it. She pointed out that even the accusation of “lying’ in a political ad can chill speech and silence people.

“They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement,” she said. “And just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?”

The Heritage Foundation’s John G. Malcolm agrees, and points out that the law can be used to harass one’s political opponents.

“Indeed, under the Ohio law, ‘any person’ can file a complaint with the commission, and they often do,” he says.

The facts in this particular case provide a good example of how tough it is to determine “truth.” The Susan B. Anthony List, a pro-life group, claimed that a political candidate supported taxpayer-funded abortion — based on his vote in favor of the Affordable Care Act.

The important question here isn’t whether that statement is true (the question was unclear enough that President Obama later signed an executive order preventing the ACA from paying for abortions). The real question is who decides whether it’s true.

That’s a power we shouldn’t be entrusting to the government.

The First Amendment means nothing if it doesn’t protect speech we find offensive.