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Many people missed an important First Amendment decision from the Supreme Court recently. Amid all of the political discussion surrounding the court’s ruling on the constitutionality of the Affordable Care Act, its decision in U.S. v. Alvarez, which came down on the same day, is worth some attention.
The case centered on Xavier Alvarez, who falsely claimed he served in the Marines and won the Congressional Medal of Honor. Alvarez was indicted under the Stolen Valor Act, which criminalized taking credit for unearned military service or honors. Both the 9th Circuit Court of Appeals and the U.S. Supreme Court held the statute, being overly broad, violated his First Amendment right to freedom of speech.
So what in the world does this have to do with political campaigns?
The answer depends upon your perspective of free speech and the marketplace of ideas. This decision may be a victory for open debate that protects political speech from government intrusion. On the other hand, the Court may have decided that spurious attacks on any candidate you work for now enjoy the protection of the First Amendment.
The constitutionality of election laws around the country is called into question in the wake of Alvarez. These are statutes that regulate, among other things, false claims of incumbency, falsely claiming an affiliation with a campaign, lying about an endorsement that did not happen or lying to voters about a ballot initiative in order to collect signatures.
Two other court cases also hang in the balance. In Ohio, there is the case of Susan B. Anthony List v. Driehaus and, in Minnesota, 281 CARE Committee v. Arneson. The 281 Care Committee case is especially important because the Supreme Court declined to hear it, sending it back to the lower court to be reassessed in light of Alvarez.
The Driehaus case is a lawsuit pursued by a former Democratic Rep. Steve Driehaus, who claims he lost his seat because Susan B. Anthony List falsely claimed he voted for government-funded abortion. Driehaus sued them under the Ohio “false statements” law.
The 281 CARE Committee case is slightly different. Rather than false statements about a candidate, it involves a Minnesota law that makes it illegal to offer false statements about ballot initiatives knowingly or with reckless disregard for the truth.
After Alvarez, both the Ohio and Minnesota statutes are on shaky constitutional ground. How you feel about this depends on your perspective of whether the marketplace can work itself out during a campaign.
One important point Justice Kennedy makes in Alvarez is the government failed to demonstrate the necessity of the Stolen Valor Act. Why make this statement illegal when online discussion and press coverage were enough to expose Alvarez’s false claims? This is the marketplace of ideas at work. Government need not intervene where we have discussion to remedy the problem of lies, especially in political campaigns.
Campaign professionals should give this argument some thought. Anyone who has ever worked on a campaign probably has a story about his or her candidate being the target of a lie. Ask yourself, “Was I able to effectively fight back against that lie?”
If the answer is “No,” why is that? Was it a shortcoming in the campaign or was there some other reason the lie could not be countered?
I have argued in this space before that there is evidence for questioning the legal discourse that says the cure for bad/false is speech is good/true counter-speech. The Alvarez decision protects the ideal of free and open debate. It also places falsehood, perhaps even outright lies, behind a barrier of First Amendment protection. People who work on or simply observe political campaigns should take the opportunity, in the wake of Alvarez, to question whether the law has it right.
Robert Spicer is a doctoral candidate in media studies in the School of Communication and Information at Rutgers University. He is also an assistant professor of communication at DeSales University in Allentown, PA.