A Political Solution to a Political Problem: Public Accountability as a Check on Campaign Speech

Chris Carson

Voters, not judges, should be the final interpreters of political speech. Political statements use rhetorical language marked by vague phrases and ambiguous terms to communicate to voters. Political candidates promote their policies in broad strokes in order to meet the expectations of as many potential voters as possible. They evade specific commitments for fear that contradictions will face media backlash during campaigns. These campaigns hold candidates accountable for political mistakes and rhetorical misrepresentations. Seventeen states, however, have lost faith in the electoral process and have enacted statutes to threaten criminal punishment on anyone who “lies” during the course of campaigns.FN1 Susan B. Anthony List (“SBA List”), a non-profit organization, awaits Supreme Court review of its petition to challenge Ohio’s statute,FN2 which the petitioner argues violates its First Amendment right to free speech.FN3 This author agrees that political statements, even lies, are protected speech. To compliment this point, this blog post highlights the practical realities that should compel the Supreme Court to rule in the petitioner’s favor. In sum, the electoral process, not the judicial process, is the appropriate means to regulate political speech.

Employing prosecutors to enforce campaign speech laws requires courts to determine “political truths.”FN4 Prosecutors’ decisions to investigate speech cases would be motivated by their own personal political beliefs. In U.S. v. Alvarez, the Supreme Court struck down the Stolen Valor Act of 2005 as an unconstitutional content-based limit on free speech because it imposed criminal liability on anyone who lied about receiving a U.S. military decoration.FN5 Such a broad prohibition of false speech applies to too many contexts like social, family, and other private communications where lies cause little harm.FN6 The Court also expressed concern that prosecution of false statements made in the political context, where lies may cause more harm, still risks “censorious selectivity by prosecutors.”FN7 If prosecutors would predictably enforce the laws in a biased manner, it follows that judges and juries could not answer the pertinent questions without first “adhering to a political decision already made.”FN8

The goal of Ohio’s campaign speech law—arguably to pressure speakers to provide accurate information to voters—may be justifiable. Nevertheless, the electoral process achieves this goal in a much less burdensome manner. The Alvarez Court disagreed with the Government’s notion that criminal punishment was a proper means to prevent false claims of military achievement. False statements made in “the political arena” could lead “listeners to vote for the speaker,” but “criminal prosecution is particularly dangerous” because it could radically affect election outcomes and “result in censorship of speakers and their ideas.”FN9 Instead, the Court proposed, “an accurate, publicly available register of military awards, easily obtainable by political opponents”FN10 as a reasonable solution.

When the Court hears SBA List v. Driehaus, it should look no further than the electoral process as a “public registry” solution. Campaigns provide the most appropriate public forum for politicians to be held accountable for their speech. They force politicians into the media spotlight through months of interviews, town hall meetings, and debates to answer for any misstatements or lies. In the end, the threat of losing an election, not incarceration, compels candidates to face the facts, albeit rhetorically.

FN1.See Alaska Stat. Ann. § 15.13.095 (West 2010); Colo. Rev. Stat. § 1-13-109 (2012); Fla. Stat. Ann. § 104.271 (West 2008); La. Rev. Stat. Ann. § 18:1463 (West 2012); Mass. Gen. Laws Ann. ch. 56, § 42 (West 2001); Minn. Stat. Ann. § 211B.06 (West 2010); Miss. Code Ann. § 23-15-875 (West 2007); N.C. Gen. Stat. § 163-274(A)(8) (2011); N.D. Cent. Code § 16.1-10-04 (West 2007); Ohio Rev. Code Ann. § 3517.21 (LexisNexis 2012); Or. Rev. Stat. Ann. § 260.532 (West 2009); S.D. Codified Laws § 12-13-16 (2004 & Supp. 2012); Tenn. Code Ann. § 2-19-142 (2003); Utah Code Ann. § 20a-11-1103 (LexisNexis 2010); Wash. Rev. Code Ann. § 42.17a.335 (West 2012); W. Va. Code Ann. § 3-8-11 (LexisNexis 2011); Wis. Stat. Ann. § 12.05 (West 2004).

FN2. Ohio’s law criminalizes “knowingly and with intent to affect the outcome” of a campaign to make a “false statement concerning the voting record of a candidate or public official . . . .” Ohio Rev. Code Ann. § 3517.21(B)(9) (LexisNexis 2012). It also prohibits disseminating “a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Id. at § 3517.21(B)(10).

FN3. Susan B. Anthony List v. Driehaus, 525 Fed. Appx. 415 (6th Cir. 2013), cert. granted, 134 S.Ct. 895 (2014) (No. 13-193).

FN4. Susan B. Anthony List v. Driehaus, 2013 WL 308748 (S.D. Ohio 2013) (holding, as a matter of law, falsely stating that a candidate “voted for taxpayer-funded abortions” amounts to falsely “associating a political candidate with a mainstream political position” and does not constitute defamation).

FN5. U.S. v. Alvarez, 132 S.Ct. 2537, 2548 (2012) (holding that criminal liability for lying about receiving an award or decoration from the U.S. Armed Forces constitutes an unconstitutional abridgement of the First Amendment freedom of speech because it is tantamount to criminalizing every day spoken untruths).

FN6. Id. at 2555 (Breyer, J., concurring).

FN7. Id.

FN8. Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that the equal protection clause of the Fourteenth Amendment provides a nonpolitical basis for independent judicial review of malapportioned state legislative districts, despite the inherently political nature of redistricting).

FN9. Alvarez, at 2555 (Breyer, J., concurring).

FN10. Id. at 2556 (Breyer, J., concurring), citing Id. at 2550-51 (plurality).