The Supreme Court’s decision to review an Ohio law providing for criminal prosecution over false statements made during political campaigns has focused attention once again on the culture of attack ads.
Fifteen other states with similar laws, and others who are considering such legislation, are watching the case with keen interest. If the court allows the law to stand, it will likely mean further restrictions on campaign statements; if it strikes it down, it could open the gates of vituperation and scurrilousness even wider.
Opponents of the law argue that, while actual prosecution is rare — only five out of more than 500 false statement claims were referred to prosecutors in Ohio between 2001 and 2010 — the “chilling effect” on free speech is significant. They note that election speech has “an extraordinarily short shelf life” and a group hauled before an election board on false speech charges never has time to exonerate itself before the election is over. In addition, third parties such as broadcasters or billboard owners may be intimidated by the threat of litigation, preventing a group from getting its message out.
Proponents of the law point to the injustice of allowing unscrupulous politicians and their over-zealous campaigners to get away with lies and distortions. Not only is it wrong in itself, but the electorate is often misled and manipulated. A hands-off, free-speech policy in elections thereby results not in preserving but in warping the democratic process.
Actually, such political warfare is nothing new. American politics was never a preserve of politeness. On the contrary, whoever could not take the “rough and tumble” of the political arena was advised to seek another outlet for his ambitions, where etiquette protected the thinner skin.
In the early days of the republic, when the Federalist and Republican factions struggled for control of the national direction, not just attack ads but attack newspapers raged in every city. The idea of non-partisan, watchdog journalism did not yet exist; virtually all newspapers took sides, and some were established for the specific purpose of tearing down the other side.
They spared no rhetorical weapon. John Adams was vilified as a monarchist, eager to make the young nation into a replica of Mother Britain; while Thomas Jefferson was painted as a dangerous Jacobin who would import the French Revolution, guillotines and all, to American soil. In the end, it was seen that neither were such extremists; and both took places of honor among the Founders.
But not before the country almost tore itself to pieces. For example, a pro-Jefferson Philadelphia paper run by Ben Franklin’s outspoken young grandson, called Adams “old, querulous, bald, blind, crippled, toothless Adams.” In later years, Andrew Jackson would be accused of being a cannibal.
No wonder that Adams, speaking for himself and Jefferson, complained that they had become the victims of “the most base, vulgar, sordid … scurrility and the most palpable lies” ever directed at public officials.
Though Jefferson also recognized the evil in such discourse, he defended the right to publish even “false and malicious” statements. “Let them stand as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it,” he wrote. The evil of suppressing them, he believed, would be even greater.
But such abuses of free speech led to the Sedition Act of 1798, which sought to punish the perpetrators. By the time the Act expired in 1801, however, it had already backfired on its Federalist advocates. Republican-aligned newspapers proliferated during those years, while the Federalists went into decline.
We live in an era of attack ads and have grown sensitive to the excesses of political combat. We are repelled by the reduction of important issues to empty slogans and personal defamation.
We deplore mudslinging. It stains the slinger no less than his target, and the average citizen standing on the sidelines gets splattered as well. Falsification of fact and character assassination should have no place in civilized society.
Laws may be necessary to rein in the mudslingers, but as the Supreme Court judges themselves indicated in recent comments, they are a dubious guarantor of free elections, at best a last resort.
The best regulators of political conduct are the people, not the courts. They are, at least in the long run, capable of finding out who the rascals are, and voting them out of power. That is the healthiest and most potent answer to the purveyors of falsehood.