“Court to Weigh Challenge to Ban on Campaign Lies” blares the AP, one of many headlines disappointingly framing SBA List v. Driehaus in very stark, somewhat misleading terms.
In the case at hand, the statements made by the Susan B. Anthony List were actually, literally true. In fact, the most that one could say is that SBA List did not frame the issue in a way that then Congressman Driehaus would have liked.
But that aside, the issue in the case is not the “right to lie,” but the ability of government to empower a commission to place legal sanctions behind the type of fact checking work done by Politifact, Glenn Kessler, and others. But there is a key difference. The fact checking by journalists makes a real effort to honestly look at the claims. The fact checking done by government officials is often motivated by political considerations, not the truth.
Of course, one of the things apparent in press efforts that examine campaign claims in recent years is that politics is rarely about “lies,” but rather about framing issues in shades of gray. Of course, libel and slander laws still apply to political ads, and those laws are not being challenged in this case.
Unfortunately, headlines such of these are just another example of the media failing to inform the public about what is actually at stake in a meaningful way. In fact, if the Ohio statute at issue applied to reporters as it does to candidates, I could file a complaint against them for the way they are framing this case, alleging it is a “lie” that doesn’t report the full truth. They would have to answer before a tribunal made up of rival media representatives, non-lawyers, exercising no articulated burden of proof, with the power to determine that their statements just weren’t accurate enough, with such a finding possibly costing them their jobs.
But particularly here, where the SBA List ads were literally true, where the President and the members (including Driehaus) openly admitted that even under their bargain the Act would pay with public funds for some abortions, it is remarkable that the press frames the issue in this case as a “right to lie” rather than whether state governments can create truth-panels that can hand down real penalties.
