The court increasingly suggests that there’s nothing special about election season as it relates to the exercise of free speech. Susan B. Anthony List President Marjorie Dannenfelser on April 22.  Photographer: Alex Wong/Getty Images
The court increasingly suggests that there’s nothing special about election season as it relates to the exercise of free speech. Susan B. Anthony List President Marjorie Dannenfelser on April 22.  Photographer: Alex Wong/Getty Images

Was a vote for the Affordable Care Act a vote for "taxpayer-funded abortion"?

Sounds like a question of opinion, doesn't it? But when a pro-life advocacy group called the Susan B. Anthony List said as much about then-Congressman Steve Driehaus’s vote during the 2010 election cycle, Driehaus filed an action charging them with making a false statement about his voting record, a crime under Ohio law. Driehaus lost the election, and the case was never decided. But the SBA folks still wanted the federal court to strike down the Ohio law as unconstitutional. Yesterday, the Supreme Court allowed their challenge case to go forward -- and that tells us something important about the future of election law.

Because the Ohio court never got a chance to find SBA guilty or not guilty of making a false statement about Driehaus’s voting record, no court has yet addressed the question of whether Ohio can outlaw such false statements altogether. The Supreme Court restricted its unanimous decision, written by Justice Clarence Thomas, to the threshold question of whether SBA could go to court seeking to have the law overruled when there were no present charges against it. The court held that the answer was yes.

Under Article III of the Constitution, there must be a case or a controversy before the courts have the authority to rule. According to Thomas's opinion, the future threat of potential prosecution for saying that a pro-ACA congressman had voted for taxpayer abortion was enough to get the SBA into court.

On its own, there would be nothing shocking or especially troublesome about this holding allowing the SBA’s case to proceed. What is notable is the unanimity. Even conservative justices who generally interpret the case-or-controversy requirement narrowly, such as Justice Antonin Scalia, Justice Samuel Alito and Chief Justice John Roberts, were prepared to reverse the lower courts to get the SBA into court. Something more is afoot than simply an expansive interpretation of case or controversy.

That something is the gradual erosion of laws regulating speech during elections. There has always been an inherent tension between free-speech law, which is ever expanding to become more protective of speakers, and limitations on what you can say or do during an election. The most prominent result of this tension has been the breakdown of campaign-finance laws, which have given way to the court’s doctrine that contributing money is a form of electoral speech, famously articulated in the Citizens United decision.

Laws such as Ohio’s that prohibit false statements about candidates are another instance of that tension. After all, if it were not during an election, Ohio almost certainly could not ban false statements about a candidate’s voting record. Candidates are public figures. Under the Supreme Court's precedent going back to the landmark 1964 case of New York Times Co. v. Sullivan, speech concerning public figures can only be sanctioned if it is actually malicious -- made with knowledge or reckless disregard of its falsehood.

What's more, in the 2012 case of United States v. Alvarez, the court struck down the federal Stolen Valor Act, which made it a crime to lie about your war medals. If a ban on valor-related lies is unconstitutional, surely a ban on falsehoods about politicians’ positions would be even more constitutionally problematic. Any justification for Ohio's law would therefore have to depend on the unique circumstances of elections.

To be sure, there is a definite logic to regulating the electoral process to make it fairer and cleaner. In the course of ordinary life, falsehoods can be corrected by more and more accurate speech. But this process takes time -- and in elections, there may not be time for the natural self-correction mechanism to work. The infusion of money behind false political statements during elections compounds the dangers of such lies. Just ask John Kerry. Left untouched by the law, the technique of swift-boating can distort electoral results.

Yet given the Supreme Court's vote on standing, it's hard to imagine that the court is going to be very sympathetic to the Ohio law or others like it if and when the time comes to review future decisions by lower courts. The court increasingly suggests that there’s nothing special about election season as it relates to the exercise of free speech. Indeed, elections seem like a particularly important time for maximizing free speech, since they are the public's only substantive opportunity to enforce its policy preferences on elected officials.

Seen from this perspective, laws regulating speech at election time are like laws regulating money at election time: obsolete relics of the Progressive-era aspiration to rid politics of distortion and dirty tricks. Count on the Supreme Court to strike down bans on election-season falsehoods when the time comes. And count on our elections to keep getting dirtier.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Zara Kessler at zkessler@bloomberg.net.