We teach our children that lying is bad. Except, apparently, when it’s done in furtherance of a political campaign in Ohio. At least that’s what a Federal Judge ruled last week. A law was passed recently in Ohio that forbid individuals from making statements about political candidates that they knew to be false. The now-defunct law stated that it’s a crime to:

[P]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.

The law was challenged as unconstitutional, and ended up in the hands of District Court Judge Timothy Black. Black decided that it was unconstitutional, citing free speech concerns. Although there are a few different court cases floating around, the debate at its core came from actions taken in 2010 by a pro-life group called the Susan B. Anthony List. Despite a law on the books in Ohio that prevented knowingly false statements from being made about political contenders, the Susan B. Anthony List created a giant billboard about former Representative Steve Driehaus who was running for reelection. The billboard claimed that by supporting President Obama’s healthcare plans, Driehaus supported abortion. Driehaus objected, given that he is actually pro-life. The resulting argument and various charges filed sparked the court case that was decided by Black last week.

Much of Black’s argument centered on finding the least-restrictive way to prevent false political speech. Rather than restricting false statements by leaving it up to the government — ostensibly the Ohio election board — to decide where the line is. Black opined that the least restrictive way to deal with false statements released about candidates is to respond with the truth. Black, in an interesting move, went so far as to quote Netflix’s hit political drama, House of Cards, explaining:

The more modern recitation of this  longstanding and fundamental principle of American law was recently articulated by Frank Underwood in House of Cards: ‘There’s no better way to overpower a trickle of doubt than with a flood of naked truth.’

Overall, the law was struck down because the truth should always win out. But Black, awesome House of Cards references aside, I don’t quite buy your logic.

Once, I think, the truth was enough. But in today’s age of the internet, and in a time when the restrictions on political spending seem to melt away with every passing court decision, I’m not sure it will be. In the 2014 midterm elections, there’s a decent chance we’ll break $2 billion dollars in political advertising for congressional races alone. There’s a 70 percent increase in commercials since the 2010 elections. For those who live in districts up for grabs, they’re pretty much guaranteed to not see anything other than political ads. Then there’s the way in which we get information today. We now have the ability to pass around information at lightening speed. It’s incredibly easy to spread lies. Let’s say that I’m a blogger, and I write something untrue about a candidate. A news outlet can report that I said it without validating the fact itself, and pretty soon it doesn’t matter whether I told the truth or not because it’s been planted in everyones’ consciousness. Judge Black just made that even easier to do.

While a “flood of naked truth” sounds great, what happens when there’s more than just a trickle of doubt to counter? What happens when the group telling lies has way more money than the group with the truth? I get the legal argument behind Judge Black’s decision — I really do — but the problem is that it no longer fits with the truth of our times.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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