by Walter Brasch
“Gov. Tom Corbett, who claims he opposes legalization of marijuana, was seen behind a barn smoking weed. Just a-puffin’ and a-grinnin’.”
“Tom Wolfe was speeding and driving drunk through the streets of York. If he can’t obey traffic laws, why would we think he’d obey the Constitution if elected Pennsylvania governor?”
“That commie socialist fascist Kenyan Muslim in the White House brought Ebola into the country to get rid of White opposition.”
The first two campaign ads are completely false. No one—yet—has sent out those messages. The third one, also false, in various forms is now circulating on the Internet and in bars.
It really makes no difference if it’s true or false. It’s on the Internet, where lies, half-truths, and hyperbole compete with bloviating pundits on radio and TV pretend-news shows.
But now, paid ads—in every medium—may also be completely false, and protected by the Constitution.
The Supreme Court, in a 9–0 decision, extremely unusual for this Court that often decides cases by a 5–4 margin, determined that political ads are protected by the First Amendment.
The case began in Ohio in 2010, when the Susan B. Anthony List, a right-wing anti-abortion group, planned to rent a billboard and place a sign on it falsely proclaiming that Rep. Steve Driehaus, an anti-abortion Democrat, supported taxpayer-funded abortion because he had supported the Affordable Care Act, also known as Obamacare. The ACA doesn’t allow taxpayer-funded abortion, except for cases of rape, incest, or medical emergencies. The billboard company refused to place the ad, fearing it was violating Ohio law against false political speech.
Driehaus filed a complaint with the Ohio Elections Commission to protest the SBA List intent, but withdrew his complaint after losing re-election. The SBA List, however, didn’t celebrate; it demanded court rulings.
Both district and appeals courts ruled the issue moot because Driehaus had lost the election and, therefore, was not facing imminent injury. The List pushed forward, claiming the issue was a First Amendment matter.
The Supreme Court remanded the case to the District Court, citing the List had the right to challenge the Ohio law’s constitutionality. In his ruling supporting the List, District Judge Timothy Black this past month, reiterated a philosophy advanced by John Milton in the 17th century that became a basis for the First Amendment. Judge Black determined, “The answer to false statements in politics is not to force silence [of lies] but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is.” The fear is that government would intercede and ban ads, stifling free speech; this would be prior restraint, a definite First Amendment violation.
Pleased with the ruling, but still loosely playing with the facts, List president Marjorie Dannenfelser issued a statement that any member of Congress who voted for the ACA had voted for taxpayer-funded abortion. The List now plans to pay for a billboard condemning Rep. Marcy Kaptur, a liberal anti-abortion Democrat, who voted for the ACA and is running for a 17th term.
Citizens of many countries don’t have the protections of our First Amendment—free speech, free press, free religion and the separation of church and state, and the rights of peaceful assembly, and to petition government for a redress of grievances. Some countries allow certain freedoms, as long as no one attacks the state or its head of state, even if the accusations are true; this was how it was in Colonial America. And some countries have severe restrictions upon false statements in political ads.
Most European countries severely restrict the use ads on radio and TV, correctly arguing that the wealthy and their even wealthier donors would dominate public discussion, thus not allowing a level playing field for all candidates. The United Kingdom, Ireland, and Switzerland ban candidates and their organizations from placing political ads on the broadcast media.
In the United States, a few rules apply to political ads. Among those rules are that candidates not in office must use the word “for,” as in “Vote for John Jones for State Senator,” as opposed to “John Jones, State Senator.” Another regulation is that all ads, print or broadcast, must include a disclosure statement, something to identify who pays for the ad, even if it’s a front group for an anonymous “benefactor.”
But, unlike a labyrinth of rules established by the Federal Trade Commission that regulate product advertising—“Our shining silver gadget, when applied correctly, can cure skin cancer”—political advertising is given a wide range, with minimal oversight.
With state-wide and federal candidates spending most of their media budgets on television advertising, and less on grassroots campaigning, the primary beneficiary of the money appears to be television stations.
With three weeks left before the biennial midterm elections, Americans can expect to continue to be carpet-bombed by print and electronic advertising, much of it deceptive or outright lies, all of it protected by the First Amendment.
[Dr. Brasch, a First Amendment scholar and award-winning journalist, is the author of 20 books. His current book is Fracking Pennsylvania: Flirting With Disaster, an overview of the economic, environmental, agricultural, and health effects of fracking; his book also looks at the influence of corporate lobbying upon the political process.]