Cato uses satire and humor to oppose Ohio campaign speech law

By Maggie Thurber | for Ohio Watchdog

“You’ve got to read this Supreme Court brief!”

Those aren’t words you normally hear, but in this case originating in Ohio, it’s apt.

Weighing in against an Ohio law that makes it a crime to lie about a candidate, the Cato Institute filed an amici curiae brief using satire and humor to poke fun at what it calls an “Orwellian” law that violates the First Amendment.

“While George Washington may have been incapable of telling a lie, his successors have not had the same integrity. The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic), are cornerstones of American democracy. Indeed, mocking and satire are as old as America, and if this Court doesn’t believe amici, it can ask Thomas Jefferson, ‘the son of a half-breed squaw, sired by a Virginia mulatto father.’”

The case began in 2010 when the Susan B. Anthony List tried to publish a billboard stating that U.S. Rep. Steven Driehaus supported taxpayer-funded abortions when he voted for the Affordable Care Act, also known as Obamacare.

Driehaus filed a complaint with the Ohio Elections Commission, claiming the ad violated Ohio’s “false statement” law, which criminalizes “false” political speech. The SBA List sued and the Sixth Circuit Court of Appeals ruled in favor of the law. The U.S. Supreme Court set oral arguments for April 22.

“Can a state government criminalize political statements that are less than 100% truthful?” Cato asks.

“John Quincy Adams called Andrew Jackson a ‘slave-trading, gambling, brawling murderer,’” the brief states, adding that allegations about Thomas Jefferson fathering children with his slave and accusations about draft-dodging, Swift boats and birthplaces are “political staple.”

“Any one of these allegations, if made during an Ohio election, could be enough to allow a complaint to be filed with the Ohio Election Commission and thus turn commonplace political jibber-jabber into a protracted legal dispute. … Inflammatory, insulting and satirical speech is more likely to produce a response, thus making the back-and-forth of politics a self-correcting marketplace of ideas – except, of course, when candidates can tattle to the government, which then takes away their toys speech.”

P.J. O’Rourke, a native Toledoan, author, satirist and H.L. Mencken Research Fellow at the Cato Institute, joined the brief, and with paragraphs reminiscent of his writing style, it’s easy to see why.

“After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular-humanist professors of Chicano studies.”

Ilya Shapiro, Cato’s senior fellow in constitutional studies, said the concept for the brief came from Gabriel Latner, a junior associate at Cato.

“I thought about the idea for a second and thought it might be a hard idea to execute,” Shapiro said. “The nature of satire goes back to time immemorial. From the Greeks to the French Court, people have used humor to poke fun, but make serious points, nonetheless.”

That was the goal, he said, but the intended audience was more than the Supreme Court.

“There’s no guarantee that any amicus brief gets read by the clerks, much less the justices,” Shapiro noted. “When do you have non-lawyers reading briefs? We wouldn’t write something that would detract from the seriousness of filing before the Supreme Court, but when you can hit the broader targets as well, we like that.”

Their argument focuses on the concept of “truthiness” – “a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic.” That concept is a key part of political discourse, they write.

“We make very serious arguments about the First Amendment,” he said, “but that doesn’t always get through. Satire can break through the point that government shouldn’t be regulating what is and isn’t false.”

Because of the way the brief is written, Shapiro hopes it will get more people thinking about campaign finance and campaign regulatory laws, especially ones that seek to regulate truth.

“Many campaign statements cannot easily be categorized as simply ‘true’ or ‘false,’” the brief states. “According to Politifact.com, President Obama’s claim that ‘if you like your health-care plan you can keep it’ was true five years before it was named the ‘Lie of the Year.’”

Even political satire is illegal under the Ohio law: “A publication like The Onion — which regularly puts words in political figures’ mouths, or makes up outlandish stories about them — could be violating Ohio law by making people think at the same time it makes them laugh.”

The brief questions politicians writing a law that protects them, but no one else, including other famous people “who are often lied about.”

Shapiro doesn’t know if the brief will impact the outcome of the case, but he hopes Ohio and other states will examine their laws and err on the side of allowing all political discourse.

“We did our best in terms of making the point we wanted to make, so we’ll see what happens,” he said.

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