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Political speech has been winning a number of incremental victories in recent years, from the 2010 Citizens United decision that allowed SuperPACs to spend money on elections, to the ruling earlier this year that struck down the overall cap on political donations.
But of course, with every victory comes a fresh assault from those who want government to control the discourse and prevent individual citizens from having their say. Since Citizens United, constitutional amendments have been drafted giving government control of money in politics and so called “dark money” has been vocally lambasted as un-American by just about everyone on the left. The IRS has tried on multiple occasions to shut down non-profit groups that participate in politics—both openly and in illegal, under the table ways.
But despite all attempts to the contrary, the winds seem to be blowing in the direction of freedom, at least in the area of political speech. The Supreme Court, continuing its good record on speech lately, is permitting a challenge to an Ohio law that bans campaign speech containing “falsehoods.”
At first it may seem sensible to prevent politicians from lying (as if such a thing were possible. You might as well try to prevent them from breathing.) However, a little thought reveals just how dangerous such regulations can be. Facts are slippery things and as much as we would like to be able to represent the objective truth in all cases, in the real world this is rarely possible. Most declarative statements are subject to some kind of interpretation. Even laws, which are purposefully written to be as objective and free of ambiguity as possible, require courts to periodically interpret their original intent.
In a political campaign, where heated accusations are wont to fly freely, separating fact from fiction becomes a hopeless exercise in futility. When one candidate says something like “My opponent supports X undesirable policy” and the other denies it, how can we really know who is right? To some degree, it’s a matter of opinion, or an inference drawn from public statements and votes taken in the past. Not being mind-readers, we cannot know the truth for sure, which means that the designated interpreter, or “fact checker,” has all the power to enforce the law on one party or the other.
This is exactly what we have seen happen with the rise of public fact-check organizations. When it comes to unilateral interpretations of facts, it is impossible to keep bias from seeping through. The Pulitzer Prize-winning Politifact frequently falls into this trap, and the infamous instance of Candy Crowley correcting Mitt Romney mid-debate over what was a legitimate difference of opinion may well have hurt Romney at the polls.
It’s not the kind of power to be taken lightly, and it is especially unwise to vest the fact checking authority in an organization with an interest in the outcome of elections. Government fact checkers are a terrible, terrible idea, because it effectively gives the political establishment the power to handicap candidates from the opposition party using the threat of legal action. If we have learned anything from the recent abuses of the IRS and the NSA, it’s that this kind of discretionary power is dangerous in government hands.
The Court wisely issued a unanimous decision in favor of the challenge, showing a rare degree of common sense in a time of political division. Hopefully they will display the same sense of justice and commitment to the First Amendment and actually strike down the Ohio law as unconstitutional.