Docket 14-003: Elections!

It’s an election themed episode of All Too Common Law! Sort of! “But, Oliver, wait,” you’re saying, “it’s June! The elections are still nearly five months away!” Good eye, anonymous audience member. Election day is a ways away. Deal with it! I want to get it out of my system now. In the news over the last couple weeks:

  • Eric Cantor lost his bid for reelection before he even made it to the ballot, so now we’re really going to see what it’s like to get nothing done;
  • On the same day that the Supreme Court lets stand an appellate decision stating that public school graduations held in churches violate the Constitution, the Court goes on to strengthen the freedom of speech; and
  • Meanwhile the Far Right equates limits on campaign spending to censorship …again.
  • Paul

    I am still a bit confused after the segment about the ohio law concerning campaign ads.

    I don’t think the hypothetical situation proposed with a campaign manager being unilaterally silenced and prevented from airing his commercial is entirely realistic. Given the current political climate, there is no way such action would be strictly one-way. A more realistic hypothetical situation would be two opposing campaign managers, each causing the other grief through accusations and red tape. Both sides would be publicly accused of willful dishonesty and each being unable to participate in public discourse.

    Such mutually assured destruction in public discourse would be just as objectionable and undesirable as the unilateral censorship, but that brings up whether there is any evidence of this occurring. It seems like only conjecture that perhaps a squelching war preventing any television/radio political ads might occur as a result of this law. In fact the specific situation here in this case was not frivolous at all–the ads WERE in fact untrue… Right? For better or worse, mutually assured destruction does seem so far to be an effective deterrent against frivolous behavior here.

    I guess what I’m saying is, I don’t see how the justification used here couldn’t equally be applied to show that libel, slander, or possibly even perjury laws are all unconstitutional too.

    All that being said, the fact that this was a unanimous decision still gives me pause, and suggests to me that I am still missing something. What am I missing here?

    • Oliver_W_H

      Thanks for the question. Looking back at my notes, I don’t think I was as clear on this point as I should have been.

      The big distinction between the Ohio law and the usual defamation (libel and slander) laws is that this law provided for potential criminal sanctions, which is a drastic step up from a civil defamation lawsuit between individuals.

      There are two major (and related) reasons that criminal sanctions are qualitatively different. First, the government is only involved in a defamation suit inasmuch as it makes a remedy available to private parties. Whether or not a person makes use of that remedy is beyond the government’s control. When making a false statement could open someone up to criminal sanctions, the government is threatening to take direct action against her. That direct government action has far greater First Amendment ramifications than the government simply making the courts available as a means of resolving a private dispute.

      Second, the court’s have concluded that the threat of criminal prosecution for saying something false will have a substantially greater chilling effect than any civil lawsuit between private individuals might have. Public figures are magnets for all sorts of convoluted and frivolous claims by people who want their 15 minutes of fame. On the other hand, word that a candidate’s campaign is being investigated for committing a crime (whatever crime that might be) is going to garner the kind of news coverage no campaign wants.

      Granted, there’s a lot of truth to your observation that both sides will probably be pulling all the same dirty tricks. But, when it comes to the First Amendment, the U.S. has generally taken the view that we would rather protect the rights of the prototypical “good guy” in my hypothetical, even if it means allowing others to sling all sorts of mud back and forth. The Ohio statute here cut in the other direction, and we frown on that.

      I hope all this made sense. My brain is a little fried right now.

      • Paul

        Yes thank you this does clear it up–mostly the differentiating between civil and criminal action which would be the difference between libel/slander laws and the ohio law. As a strong proponent of the decriminalization (not necesarily legalization) of recreational drugs, I appreciate the dramatic difference. I simply wasn’t listening close enough earlier and missed that the ohio law was a criminal statute.

        That absolutely makes the difference. I had in my mind something along the lines of an FCC investigation into fraudulent claims in advertising as to the nature of how such complaints filed in Ohio would be handled.

        Criminalizing the act of dishonesty conjures images of the Ministry of Truth or other such Orwellian concepts. It surprises me that so many states set up these statutes in this way when a civil statute could have reached the same goal without the extremely unconstitutional smell.