The Times West Virginian


April 24, 2014

Laws to keep mudslinging to minimum can stife free speech

By nature, and by profession, we do not like lies. As journalists, we’re truth tellers. Or at least we attempt to get at the truth through research, attribution, documents and comments from people on either side of an issue.

Sometimes it ends up with “telling lies from both sides,” as a crusty reporter once mused a handful of years ago. That seems especially true during election seasons, as we are currently experiencing. That is not to say that all those who seek office tell lies. But many times, the things said within a campaign season are generalizations and assumptions and are put out there for the shock value.

“My opponent’s proposed tax platform would put mom and pop stores out of business.”

“My opponent wants to pass laws that would put semi-automatic assault rifles in the hands of children.”

Those seem like far-fetched statements. And it’s entirely possible that there is a thread of truth to each statement, but it’s weaved into a shocking accusation and carefully scripted for the most voter impact.

Policing false statements made during a political campaign, whether they be in print, on websites, on billboards or spoken, is a very dangerous practice. And during arguments earlier this week over an Ohio law in front of the U.S. Supreme Court, justices said that laws in 15 states are questionable and possibly an attack against free speech and debate within political campaigns.

The case in a nutshell is this: During the 2010 election, a national anti-abortion group, the Susan B. Anthony List, wanted to place billboards against Congressman Steve Driehaus, D-Ohio, of supporting taxpayer-funded abortion because he voted in favor of the health-care overhaul. Driehaus claimed the billboard would violate Ohio’s law against reckless falsehoods during an election and filed a complaint with the Ohio Elections Commission. The commission found that there was probable cause that there was a violation of law, which stopped the billboard company from posting the ad. The anti-abortion PAC challenged the state law as unconstitutional, but a judge said that there wasn’t any harm done to the group so it didn’t have the right to sue.

So the issue comes to the Supreme Court. Unfortunately, its final ruling will not answer the question of whether these laws that attempt to police statements before and after they are made during elections violate the First Amendment. The only question the court can answer is whether the group has the right to challenge the law even though the case was dismissed.

We surely wish they’d be able to rule on the law itself and those like it. Of course, justices had the opportunity to speak out against it this week during oral arguments. They say that having to answer to a commission and possibly face charges for things said during a heated election would have a chilling effect on free speech.

“What’s the harm?” Justice Stephen Breyer asked Eric Murphy, attorney for the state of Ohio. “I can’t speak, that’s the harm.”

Justice Anthony Kennedy followed that with the statement that there was “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.”

Why do wish that there’s be a ruling on the Ohio law? Well, other states with similar laws include Alaska, Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, West Virginia and Wisconsin.

That’s right, West Virginia. We agree with a statement that Chief Justice John Roberts made, that it is not just the candidates and the PACs who suffer under such laws. It is also the third parties, like newspapers and TV stations or billboard owners that can be intimidated by the law, and that, too, will stop a candidate or group from getting their message out to the voters.

And that just shouldn’t be the case. There needs to be an opportunity for wide-open debate during the political process. We don’t endorse lies, but we also fear that laws to keep mudslinging down to a minimum will also trample on freedom of speech of all candidates and those groups and committees that support them.

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