Lies, Damn Lies, and Constitutionally Protected Political Speech
When he was elected in 1994, Wes Cooley might have been the perfect Congressional candidate for the Oregon’s rural 2nd District.
A brash, straight-talking rancher, Cooley was about as outside the Beltway as you could get. He’d only even first entered politics two years prior, winning a seat in the Oregon State Senate his very first try. A self-made rural millionaire, Cooley had joined the army out of high school and quickly worked his way up the chain of command. He’d been in Special Forces in the Korean War and was highly decorated. After the war he earned a law degree and a master’s, graduating Phi Beta Kappa. He was, in short, a movement conservative’s wet dream.
A man who worked the land with his bare hands, he knew better than anyone what a bunch of hooey those environmentalists were spewing. A man of academia, he knew better than those eggheads in DC what the law books really said. A man of the military, he knew the inherent danger of electing a pinko draft-dodger to the oval office. He even had that most obligatory of all male GOP-candidate accessories: a wholesome, slim, busty bottle-blonde wife that dressed in a way that broadcast “sexy but not liberally sexy.” There was, however, one small problem with Cooley:
Almost nothing he had claimed about his life was true.
He’d been in army, but not during the Korean War and had never seen combat. He’d never served in Special Forces, never been decorated, never gotten a law degree or master’s, and never graduated Phi Beta Kapa. He may not have even been legally married — and if he was he and his wife were surely committing federal crimes by cashing her Department of Veteran Affairs benefit checks assigned to her when her first husband had died. As it turned out, he wasn’t even a rancher and he didn’t live in the 2nd district. The Cooley’s sold “vitamins” that promised to cure ailments they did not via mail.
When all of this was brought to light well after his election, Cooley initially refused to step down. Members of the GOP leadership, led by Newt Gingrich, talked him into withdrawing from the 1996 election just prior to the State of Oregon finding him guilty of submitting false documents for the state voter’s pamphlet. (To this date, Wes Cooley remains the only Congressman ever convicted for lying to voters.) Cooley would later go on to face arrests for stock fraud, running pyramid schemes, and tax evasion.
And as strange as the Wes Cooley saga was for we Oregonians who lived through it, this summer the Supreme Court is widely expected to begin down a road that will do something even stranger: Rule that since he was a candidate for public office, Cooley’s lies regarding his education, marriage statues, military service, occupation, criminal record and place of residence should have been protected by the first amendment.
On August 22, SCOTUS is scheduled to hear oral arguments for Susan B. Anthony List v. Driehaus. The case revolves around Ohio Revised Code 3517.21, which makes illegal certain types of blatant untruths strategically used in political campaigns.
For example, 3517.21 states that if you are running for office, you cannot claim to have held public offices that you never held, or claim that you have no criminal record if in fact you do. Nor can you claim to have a professional designation or certification you have never earned. You’re also not allowed to make certain types of false statements about others, such as made up claims that your opponent was once under investigation for embezzlement, or that they have contributed significant amounts of money to an unpopular political cause — say, the Nazi party or NAMBLA.
There are, of course, a million ways to play dirty in American politics, and many of those strategies use language to bolster one’s self or undermine others without quite falling afoul of 3517.21. For example, a candidate can make predictions about what might happen if they lose: If elected, my opponent will set back women’s rights 50 years! He or she might also state his or her own opinions: I have yet to see anything that convinces me to believe evolution is real. Sometimes candidates make statements that are true and yet still be misleading: I am a “successful” businessman. Politicians can even make claims that are so nebulous as to not be objectively right or wrong: My opponent is not a true heartland American. All of these kinds of statement might (or might not) be dishonest, but they aren’t really lies.
It’s important to note, then, that 3517.21 does not address this type of potentially dishonest behavior — rather, it deals with those kinds of political statements that are clearly, knowingly, and demonstrably whoppers. That is certainly the case with Susan B. Anthony List v. Driehaus.
The Susan B Anthony List (SBAL) is a national anti-abortion non-profit that looks to support pro-life candidates in local elections. In 2010, SBAL targeted Steve Driehaus, the Democratic representative from Ohio’s 1st district. As part of their campaign against Driehaus, the nonprofit bought billboard space to dispaly the message that he had voted to fund taxpayer-funded abortion. This claim was untrue — and it bears noting that SBAL does not dispute this. From SBAL’s point of view, its mission was not to inform the public; its mission was to oust a pro-choice candidate. Lying is simply a tool they wish to have in their arsenal, and they argue that the first amendment protects them in this capacity. And it appears likely that the Supreme Court is going to agree with them.
Now, the case before SCOTUS is not to determine whether or not lies in the cause of ideology is protected under the first amendment, but rather whether or not SBAL has the standing to file suit since it suffered no real damage. (Driehaus went on to lose the election without an assist from said billboard.) Still, it is likely that SCOTUS will not only rule that SBAL’s case is “ripe,” but also — if and when it snakes its way through the courts again — that ideologically-driven lies are protected speech. Justice Sotomayor has already gone on record that she thinks Ohio’s Revised Code 3517.21 is unconstitutional, and Justice Ginsberg has essentially agreed. What’s more, as of the beginning of this month every brief filed for Susan B. Anthony List v. Driehaus has argued on behalf of the plaintiff, even — I swear I am not making this up — the one by Ohio’s own Attorney General.
And we already have a ruling from a similar case with this court, with The United State vs. Alvarez. That case was similar to the case of Wes Cooley, though to a watered-down degree: In 2007 Xavier Alvarez, an elected director of the Three Valley Water District in Pomona, California, lied about having earned the Medal of Honor. This turned out to be bad timing on his part. Two years prior George W. Bush and a GOP controlled Congress had passed the Stolen Valor Act, which said that although politicians could tell lies to get us into wars, they weren’t allowed to tell untrue war stories about themselves afterwards. As attempts to make political officials accountable to the public go, the SVA was laughable. It was little more than a cultural signaling meant to stick it to John Kerry just one last time. The SVA was, at best, a mere drop of water in the vast, vast ocean. The thing of it is, though, even a mere drop of water is still water.
SCOTUS looked at the Alvarez case in 2012, and ruled 6-3 that Alvarez, being a political figure, had every right to claim that he had won the Medal of Honor even though he had not. In doing so, the court also legally (and perhaps unwittingly) exonerated Cooley, who had really done the same thing albeit to a far greater degree. If Susan B. Anthony List v. Driehaus proceeds as expected, it will be yet another brick in the wall defending ideologically driven lies in the name of the first amendment. This, I humbly suggest, is a wall we carefully consider before fully erecting.
Imagine if you will that you own a small hamburger joint in your area that happened to be right across the street from a McDonalds. Imagine as well that in an effort to steal away customers, you put out advertisements falsely claiming that your cross-street rival had been cited on numerous occasions by the local health department and that several children had been made sick by their tainted meat. In these advertisements you also claim that your establishment had won three Health Department Awards in a row, despite the fact that such a thing does not actually exist. Your utter lack of moral standing aside, I think we can all agree that you would be breaking the law — and that in no time at all, you’d have a friendly series of “meetings” at your local court house with judges, juries, and the nice, helpful people of McDonald’s legal team to assist you in understanding your error.
We as a society agreed a long time ago that the freedom of speech does not protect you from legal consequences borne of false statements. If a high paying position is given to you on the basis of your stated education and professional experience, that company can sue you for damages later on if it turned out you committed fraud when applying. If your rival begins dating the gal you lusted after, you are not allowed to send emails to his employer, co-workers, neighbors and family saying erroneously that he was once arrested for selling child pornography. If you are not a licensed physician, you cannot claim that you are. If a research team at Harvard never tested your new protein bar, you cannot say that they declared it superior after clinical trials. When Oprah Winfrey did a special on Mad Cow Disease and some of the facts reported were questioned, she was sued by Texas ranchers for millions of dollars for running afoul of the False Disparagement and Perishable Food Products Act of 1995. You can get on the wrong side of the law by making libelous product reviews, using less that flattering adjectives for meat, and unjustly accusing women in your church parish of being “fornicators.”
Mind you, slander, libel and fraud cases are tough to win. Judges and juries are far more likely to find in favor of the defendants in these cases — and that’s more likely than not a good thing in our litigious society. But hard-to-win or not, slander, libel and fraud are still against the law. It’s one thing to have a judge say that you didn’t adequately prove that you were damaged by your neighbor when he falsely told everyone you were a drug dealer; it’s another thing altogether to have that judge say your neighbor has every right to do so.
Why then, should we agree this behavior is acceptable when practiced by people in politics?
Before you answer, consider another case that took place in Iowa in 2010, at the exact same time SBAL was attempting to put up its inaccurate and misleading billboard.
As I discussed two years ago, Iowa Congressman Bruce Braley was running for reelection when opposition TV ads began playing heavily in his district. These ads ominously claimed a link — unsubstantiated and non-cited — that Braley had ties with terrorist groups, and was working with them in conjunction with his efforts to get the so-called Ground Zero mosque built in New York City. (Not only did Braley have no such ties, he hadn’t even commented one way or the other on the Ground Zero controversy.) What’s more, there was no way to tell who was behind for the ads. As I noted back in 2012, they were paid for by the AmericanFutreFund, which was owned by the Center to Protect Patient Rights. Each existed as nothing but a PO box in Phoenix, AZ. This, then, is the likely product of this “political free speech” that SCOTUS is expected to hand down.
Also bear in mind the fact that in the Alvarez case, no one was running for office. Rather, the court ruled that a sitting government official was allowed, as part of his regular duties, to lie to his constituents because those lies were protected by the first amendment. Setting political officials up as a separate class of people who are legally allowed to make false statements as part of their job is the very opposite of government transparency. And if you don’t think there’s a double standard there, try it out the next time the IRS audits your business: “Why, yes sir, I did lie about all of these various deductions — but I think you’ll find that those lies are protected by my first amendment rights.”
Of course, I can certainly see how laws like Ohio’s 3517.21 could be abused. (In fact, I’m a little surprised that Karl Rove hasn’t already made use of it just to get candidates his backers oppose gummed up in the courts.) And I understand that there will be some situations out there where the truth about a contested claim won’t be so black-and-white. But on the other hand, so the hell what? We have these libel, slander and fraud laws on our books for every other segment of society as long as we’ve been a country, and we’ve managed to muddle through just fine. The fact that I can’t write a series of posts falsely claiming there was a rattail in my quarter pounder hasn’t brought commerce grinding to a halt. The fact that Wes Cooley is the only congressman in the history of our country to be convicted of such a thing suggests that politicians aren’t exactly going out of their way to make prosecuting politicians for lying a fad. (Except in pretend trials, that it.)
Where does the exact answer lie (no pun intended)? Where do we draw that elusive free-speech line in the political sands? I confess I’m not entirely sure. But if the biggest knock against Ohio Revised Code 3517.21 so far is that it doesn’t let political campaigns tell people that certain candidates voted for things they didn’t vote for, I’m willing to start there and see how it goes.
 Can I just say how weird I find it that there’s a conservative pro-life group out there named the Susan B. Anthony List? It’s like finding out there’s a progressive anti-handgun group that’s calling themselves the William F. Buckley List, or an urban minority outreach program that goes by the Ayn Rand List.
Seriously, was the Che Guevara List already taken?