Policing Political Speech

By George Will

Saturday, April 19, 2014

Occasionally, the Supreme Court considers questions that are answered merely by asking them. On Tuesday, the court will hear arguments about this: Should a government agency, whose members are chosen by elected officials, be empowered to fine or imprison any candidate or other participant in the political process who during a campaign makes what the agency considers “false statements” about a member of the political class or a ballot initiative?

An Ohio statute, which resembles laws in at least 15 other states, says, among many other stern things, that: “No person, during the course of any campaign . . . shall . . . make a false statement concerning the voting record of a candidate or public official.” Former U.S. representative Steve Driehaus, a Cincinnati Democrat who considers himself pro-life, says he lost his 2010 reelection bid because the pro-life Susan B. Anthony List violated Ohio’s law with ads saying that when he voted for the Affordable Care Act (ACA), he voted for taxpayer funding of abortion.

When he learned that the SBA List planned to erect billboards proclaiming “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” he filed a complaint with the Ohio Elections Commission, the truth-arbiter and speech-regulator. So the billboard company refused the SBA List’s business. The SBA List did air its message on radio.

One can credit Driehaus’s pro-life sincerity, given that the ACA’s passage was greased by many more deceptions and dissimulations than the president’s gross falsehood that “if you like your health care plan, you can keep it.” Driehaus says the ACA does not specifically appropriate money for abortions. The SBA List counters that the ACA can subsidize abortion-inclusive insurance coverage.

Driehaus says insurance companies must collect a “separate payment” from enrollees and segregate this money from federal funds. The SBA List says money is fungible, so this accounting sleight-of-hand changes nothing.

Driehaus says an executive order issued after passage of the ACA, which was promised to get him and a few other pro-life Democrats to vote for the act, prohibits ACA funds from being used for abortions. The SBA List says the executive order proved that the ACA itself allowed taxpayer-funded abortions. The president of Planned Parenthood, the nation’s largest abortion provider, seemed to agree, complacently dismissing the executive order as a “symbolic gesture.”

Ohio’s law, which obviously is designed to encourage self-censorship, certainly chilled the SBA List’s political speech. Yet a lower court upheld the infliction of the intentionally speech-suppressive law on the SBA List because those challenging it supposedly must prove something impossible — that if they persisted in their speech, they would be certainly and imminently and successfully prosecuted. Under this standard, politically motivated people can, at little cost to themselves, make accusations that entangle adversaries in expensive speech-halting proceedings during a campaign.

The SBA List’s brief to the Supreme Court notes that “a law requiring citizens to pay $1 before they could publicly comment on electoral issues or candidates for office would be immediately justiciable (and promptly invalidated).” Yet Ohio’s law makes it easy for literally millions of Ohioans to subject participants in the political process to much more expensive costs — not to mention the threat of incarceration.

The Ohio Elections Commission has pondered the truth or falsity of saying that a school board “turned control of the district over to the union,” and that a city councilor had “a habit of telling voters one thing, then doing another.” Fortunately, the Supreme Court, citing George Orwell’s 1984, has held that even false statements receive First Amendment protection: “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”

This case, which comes from Cincinnati, where the regional IRS office was especially active in suppressing the political speech of conservative groups, involves the intersection of two ominous developments. One is the inevitable, and inevitably abrasive, government intrusions into sensitive moral issues that come with government’s comprehensive and minute regulation of health care with taxes, mandates, and other coercions. The Supreme Court will soon rule on one such controversy, the ACA requirement that employer-provided health-care plans must cover the cost of abortifacients. The other development is government’s growing attempts to regulate political speech, as illustrated by the Obama administration’s unapologetic politicization of the IRS to target conservative groups.

These developments are not coincidental. Government’s increasing reach and pretensions necessarily become increasingly indiscriminate.