Thursday, June 19, 2014

Liars lying about a "right to lie" and who's lying

Here is your irony supplement for the day:

During his last failed run for the House in 2010, former Rep. Steve Driehaus (D-OH) claimed that Obamacare doesn't allow any federal funding of abortion. Well, there are provisions in PPACA that allow the government to fund abortions (see below), so Susan B. Anthony List tried to put up billboards calling BS on his statement. Driehaus threatened the billboard company with a lawsuit, and filed a complaint with the Ohio Election Commission asserting that SBA List was in violation of the state's "false statement" law. Per Jack Park of Legal Insurrection:
The Commission found probable cause to think Driehaus was right and scheduled a hearing. That probable cause determination turned Driehaus loose to pursue discovery, which he did intrusively, noticing depositions of SBA List employees and others and asking for not just evidence supporting SBA List’s interpretation of the Affordable Care act but also for its "communications with allied organizations, political party committees, and Members of Congress and their staffs."

SBA List filed suit against the state, claiming the statute violates the First Amendment. When Driehaus lost the election, he dropped his complaint and filed a defamation suit, claiming SBA List had caused him "loss of livelihood". SBA List, however, pressed on with their suit. Since the claim had been dropped, the Sixth Circuit judge, Timothy Black, ruled that there was no longer a cause or controversy. Black also refused a motion for a summary judgment in the defamation case; when he later dismissed the case, he confessed that he "could not see the forest for the trees".

On Monday, SCOTUS unanimously reversed Black's decision, holding that "the threat of future enforcement" of the Ohio "false statement" law "is substantial." Wrote AJ Clarence Thomas, "There is a history of past enforcement against petitioners. Past enforcement against the same conduct is good evidence that the threat of enforcement is not '"chimerical."' The credibility of that threat is bolstered by the fact that a complaint may be filed with the State Commission by 'any person,' not just a prosecutor or agency."
Of course, the National Abortion Rights Action League and HuffPo have had a field day with this, claiming that SBA List is pushing for a "right to lie". And in fact, the claim that SBA List lies rests on Judge Black's determination that "ACA does not directly mention abortion" (italics mine; see Wikipedia's article on Susan B. Anthony List v. Dreihaus).

This is an awfully slender reed to lean on. As LifeSiteNews' Ben Johnson points out, "The Patient Protection and Affordable Care Act requires employers to cover 'contraception' such as Plan B and Ella that can act as [abortifacients]. As well, under the law insurance plans within the state health exchanges can cover abortions, with enrolees being required to pay a $1 surcharge specifically for abortion coverage." These are significant back-door methods of federally subsidizing abortion.

So SBA List has to be seen to argue a "right to lie" — more like a "right to be wrong" — in order to tell the truth, while NARAL and HuffPo can score cheap rhetorical points by impugning the integrity of SBA List and the pro-life movement in general.

Notes Park, "All in all, this is nothing less than a recipe for mischief. It gives politicians and their supporters a club to use against their opponents. As Ohio's Attorney General noted, in one of the two briefs filed for his office in this case, the Commission has 'no system for weeding out frivolous complaints.' Ohio’s Attorney General also pointed out, '[T]he practical effect' is 'to permit a private complainant ... to gain a campaign advantage without ever having to prove the falsity of a statement.'"

Exactly. Setting aside the actual "truth content" of SBA List's claims, Dreihaus was able to cripple SBA List's participation in the public square and put substantial legal burdens on them just by asserting that they had lied and getting the Ohio Election Commission to go along with it. Even granting that Dreihaus still lost by a wide majority, it doesn't follow that someone in the future won't win an Ohio election by silencing his/her opponents through the mechanism of the OEC. 

What if a pro-life Republican were to such an accusation against NARAL? I don't know whether it's naïveté or unconscionable arrogance, but liberals seem to believe no conservative will ever be in a position or have the willingness to use their tactics against them ... or that, if they do try, they'll fail.

Park closes his Legal Insurrection post with, "The real question is whether the lower courts will get the First Amendment issue right when they consider it." I think Thomas et al. have pointed the Sixth Circuit in the direction it ought to go: 

SBA's insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.

 This, I believe, is Thomas telling Black, "Look, the Ohio law allows the Election Commission to define errors of fact as 'lies' without any reference or evidence as to the accused's intentions and knowledge, and the Commission has already done so once. This is far too broad a definition. Do the right thing, and declare the law unconstitutional."

This is really not so much about a "right to lie" as it is about rigging elections by having politicians in strategic positions decide what's "true" and "false" so they can persecute anyone who dares to have a different opinion. We can only thank God and the good sense of the people of Ohio that it didn't work in 2010. The law needs to be struck down so such ideological gagging doesn't ever have a chance to work.