BOB GARFIELD: This week, the Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus, a case that could help decide whether it's illegal to lie during a political campaign. In Ohio, where the case originated, it is a crime to knowingly or recklessly lie about a political candidate or a ballot initiative, a law both righteous and absurd. Yes, truth is the soul of justice, but depriving a candidate of the lie is like depriving a butcher of his cleaver. And then there's that pesky First Amendment, which protects speech, and especially political speech, from government censorship. A clash of noble principles, this is. Adam Liptak is the Supreme Court correspondent for the New York Times, and he has been following the case. Adam, welcome back to OTM,

ADAM LIPTAK:  Good to be here, Bob.

BOB GARFIELD:  Tell me more about this Ohio law. Is it unique in the 50 states, or are there others like it?

ADAM LIPTAK:  It turns out that about 15 states have similar laws. And, as you say, on some level, I suppose, it's a good idea. Lying in politics is both routine but not desirable.  

At the same time, the way these laws are set up, they really test the boundaries of the First Amendment's protections.

The Ohio law is incredibly broad. It allows anybody to bring an action against anybody else.

So if you or I posted something on Facebook that somebody didn’t like, we could be hauled before an election commission made up of bureaucrats who would make a judgment about whether our speech was true or not. A first offense could get you six months in jail, and a second offense could disenfranchise you; you could lose your right to vote. The plaintiffs in this case say that the mere existence of this law really chills their right to free speech.

BOB GARFIELD:  Explain, please, what this particular case, Susan B. Anthony List v. Driehaus, is all about.

ADAM LIPTAK:  So this outfit wanted to put up a billboard saying the candidate supported taxpayer-funded abortion.

BOB GARFIELD:  The outfit being Susan B. Anthony List, an antiabortion advocacy group, the candidate being Steven Driehaus.

ADAM LIPTAK:  Exactly right. And that statement may be said to be truthy. He did vote for the Affordable Care Act. You can read various provisions of that, if you have a strong cup of coffee and an accountant by your side to endorse the view that that’s tantamount to voting for taxpayer-funded abortion, but it's not the only obvious reading of the law. And the billboard company, after being contacted by the candidate, said they would not run the ad. They were afraid of being dragged into this litigation. And the election board issued a finding of probable cause that there was a lie here.

The election came and went. The action was dropped. And the immediate question for the US Supreme Court was not the delicious one of is the law constitutional, but rather a preliminary one of in these circumstances, did Susan B. Anthony List have standing to sue.

BOB GARFIELD:  Questionable standing because, as it turned out, Driehaus lost the election, so their failure to get that billboard posted caused them no obvious harm.

ADAM LIPTAK:  True. And my sense of where the Supreme Court is on this, at least on that preliminary question of can they sue, the answer will almost certainly be yes. And I would also think that if the ultimate question, is the law constitutional, reaches the Court, they’re very likely to say no, in large part because only a couple of terms ago they said that some knucklehead who walked around lying about having received the Congressional Medal of Honor couldn't be prosecuted for that, even though there was a federal law that made it a crime.

BOB GARFIELD:  Now, that’s the Alvarez case.

ADAM LIPTAK:  Exactly.

BOB GARFIELD:  This was a candidate who puffed up his resume to include [LAUGHS] the Congressional Medal of Honor, which he had not won, and was prosecuted under the Stolen Valor Act, written for precisely such a situation. But the Supreme Court said that, no, the Stolen Valor Act as an overbroad chilling of one's personal right to [LAUGHS] lie his ass off.

ADAM LIPTAK:  And that was a slightly surprising decision. And it went against statements in earlier decisions that said the First Amendment doesn't protect lies. But the Court said that unless there’s a clear harm that flowed from the speech - you know, libel still exists, but free-floating lies that have no have no special consequences can’t be made criminal and that a law making such lies criminal violates the First Amendment. And if that's true in the Medal’s setting, it almost surely carries over to the setting of these laws that try to regulate more generally political campaigns.

BOB GARFIELD:  There does seem to be an underlying riddle here, a kind of Gordian Knot of democracy. And that is, this is a nation of laws, and laws are theoretically [LAUGHS] based on truth, and truth is sacrosanct; you can be sent to jail for lying under oath. And yet, the country is also built on the First Amendment, which lets you get away with - almost anything. Is this an irresistible force against an immovable object?

ADAM LIPTAK:  It really boils down to the question of whom do we trust to make these judgments. Do you trust a presumably informed and skeptical citizenry to make wise judgments about the nonsense that pollutes our airwaves? Or do you trust a set of government bureaucrats, some of them self-interested, some of them partisan, to make a judgment on behalf of the government, with criminal penalties flowing from it about whether something is true or not?

BOB GARFIELD:  So if the Court rules, as you suspect it will, is this a victory for truthiness?

ADAM LIPTAK:  [LAUGHS] Yes, it’s a runaway nine-nothing truthiness victory.

BOB GARFIELD:  [LAUGHS] All right, Adam, thank you so much.

ADAM LIPTAK:  Thank you, good to be here.

BOB GARFIELD:  Adam Liptak is the Supreme Court correspondent for the New York Times.

BOB GARFIELD: This week, the Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus, a case that could help decide whether it's illegal to lie during a political campaign. In Ohio, where the case originated, it is a crime to knowingly or recklessly lie about a political candidate or a ballot initiative, a law both righteous and absurd. Yes, truth is the soul of justice, but depriving a candidate of the lie is like depriving a butcher of his cleaver. And then there's that pesky First Amendment, which protects speech, and especially political speech, from government censorship. A clash of noble principles, this is. Adam Liptak is the Supreme Court correspondent for the New York Times, and he has been following the case. Adam, welcome back to OTM,

ADAM LIPTAK:  Good to be here, Bob.

BOB GARFIELD:  Tell me more about this Ohio law. Is it unique in the 50 states, or are there others like it?

ADAM LIPTAK:  It turns out that about 15 states have similar laws. And, as you say, on some level, I suppose, it's a good idea. Lying in politics is both routine but not desirable.  

At the same time, the way these laws are set up, they really test the boundaries of the First Amendment's protections.

The Ohio law is incredibly broad. It allows anybody to bring an action against anybody else.

So if you or I posted something on Facebook that somebody didn’t like, we could be hauled before an election commission made up of bureaucrats who would make a judgment about whether our speech was true or not. A first offense could get you six months in jail, and a second offense could disenfranchise you; you could lose your right to vote. The plaintiffs in this case say that the mere existence of this law really chills their right to free speech.

BOB GARFIELD:  Explain, please, what this particular case, Susan B. Anthony List v. Driehaus, is all about.

ADAM LIPTAK:  So this outfit wanted to put up a billboard saying the candidate supported taxpayer-funded abortion.

BOB GARFIELD:  The outfit being Susan B. Anthony List, an antiabortion advocacy group, the candidate being Steven Driehaus.

ADAM LIPTAK:  Exactly right. And that statement may be said to be truthy. He did vote for the Affordable Care Act. You can read various provisions of that, if you have a strong cup of coffee and an accountant by your side to endorse the view that that’s tantamount to voting for taxpayer-funded abortion, but it's not the only obvious reading of the law. And the billboard company, after being contacted by the candidate, said they would not run the ad. They were afraid of being dragged into this litigation. And the election board issued a finding of probable cause that there was a lie here.

The election came and went. The action was dropped. And the immediate question for the US Supreme Court was not the delicious one of is the law constitutional, but rather a preliminary one of in these circumstances, did Susan B. Anthony List have standing to sue.

BOB GARFIELD:  Questionable standing because, as it turned out, Driehaus lost the election, so their failure to get that billboard posted caused them no obvious harm.

ADAM LIPTAK:  True. And my sense of where the Supreme Court is on this, at least on that preliminary question of can they sue, the answer will almost certainly be yes. And I would also think that if the ultimate question, is the law constitutional, reaches the Court, they’re very likely to say no, in large part because only a couple of terms ago they said that some knucklehead who walked around lying about having received the Congressional Medal of Honor couldn't be prosecuted for that, even though there was a federal law that made it a crime.

BOB GARFIELD:  Now, that’s the Alvarez case.

ADAM LIPTAK:  Exactly.

BOB GARFIELD:  This was a candidate who puffed up his resume to include [LAUGHS] the Congressional Medal of Honor, which he had not won, and was prosecuted under the Stolen Valor Act, written for precisely such a situation. But the Supreme Court said that, no, the Stolen Valor Act as an overbroad chilling of one's personal right to [LAUGHS] lie his ass off.

ADAM LIPTAK:  And that was a slightly surprising decision. And it went against statements in earlier decisions that said the First Amendment doesn't protect lies. But the Court said that unless there’s a clear harm that flowed from the speech - you know, libel still exists, but free-floating lies that have no have no special consequences can’t be made criminal and that a law making such lies criminal violates the First Amendment. And if that's true in the Medal’s setting, it almost surely carries over to the setting of these laws that try to regulate more generally political campaigns.

BOB GARFIELD:  There does seem to be an underlying riddle here, a kind of Gordian Knot of democracy. And that is, this is a nation of laws, and laws are theoretically [LAUGHS] based on truth, and truth is sacrosanct; you can be sent to jail for lying under oath. And yet, the country is also built on the First Amendment, which lets you get away with - almost anything. Is this an irresistible force against an immovable object?

ADAM LIPTAK:  It really boils down to the question of whom do we trust to make these judgments. Do you trust a presumably informed and skeptical citizenry to make wise judgments about the nonsense that pollutes our airwaves? Or do you trust a set of government bureaucrats, some of them self-interested, some of them partisan, to make a judgment on behalf of the government, with criminal penalties flowing from it about whether something is true or not?

BOB GARFIELD:  So if the Court rules, as you suspect it will, is this a victory for truthiness?

ADAM LIPTAK:  [LAUGHS] Yes, it’s a runaway nine-nothing truthiness victory.

BOB GARFIELD:  [LAUGHS] All right, Adam, thank you so much.

ADAM LIPTAK:  Thank you, good to be here.

BOB GARFIELD:  Adam Liptak is the Supreme Court correspondent for the New York Times.