Ann Althouse has an article up about a an amicus brief filed in Ohio which has the net effect of trying to silence public discourse with regards to politicians. The brief was filed by Cato Institute and P.J. O’Rourke. This is a clear attempt at Shutuppery via lawfare.
From the amicus brief of the Cato Institute and P.J. O’Rourke in Susan B. Anthony List v. Driehaus, the Supreme Court case that asks the question “Can a state government criminalize political statements that are less than 100% truthful?” (PDF, via Metafilter.)
The brief is full of funny things (along with actual free-speech doctrinal analysis). I laughed out loud at footnote 15:
[Rep. Steven] Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer-funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.It’s laugh-out-loud funny (to me) because it’s surprising to see direct mockery of one of the Justices who will decide the case (that is, Chief Justice Roberts, who famously cast the deciding vote in the Obamacare case, upholding the individual mandate, by seeing it as an exercise of Congress’s power to tax).
The brief is worth reading as it brings up some important points about the attempt here to shut down public discourse and that this appears to be a direct violation of the First Amendment. My take is it looks like a version of Schumer’s media shield law on steroids.
When political barbs become legal disputes, the public is denied an important part of political speech,namely, responses to those allegations. “If there be time to expose through discussion the falsehood andfallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S.357, 377 (1927). 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.
Shorter: Don’t attempt to call out your elected officials or you’ll be sued regardless if you’re right or not; or Shut up.
Examples given are Obama’s Lie of the Year, Nixon’s obfuscation, Clinton lying to Congress and Anthony Weiner. It’s 24 pages. Read it.