It's a falsehood that we can outlaw political lies

Do Americans have a constitutional right to lie?
That question likely is not the one that the U.S. Supreme Court will decide when it takes on an Ohio case that comes before it next week. That case involves an ousted member of Congress who complained to the Ohio Elections Commission about an anti-abortion group's attacks. His gripe: the group's claim he "voted for taxpayer-funded abortion" when he voted for Obama's healthcare law. Ohio has a law on the books that makes lying about a political opponent illegal. In this case, Democrat Steve Driehaus even threatened to sue a billboard company, which considered, but did not run the ad.
Driehaus said statements against him by the group Susan B. Anthony List were false because federal funds cannot be spent to pay for abortions (that prohibition began in 1976 with the Hyde Amendment).
The Elections Commission found "probable cause" that the statement was false. That set the stage for a full commission hearing. Before it was held, Driehaus lost his reelection bid and withdrew his complaint.
The antiabortion group, however, wants the case to go forward. Next week the Supreme Court will consider the matter, seen as clearing the way for an attack on the constitutionality of the Ohio law and similar measures in 15 other states.
The free speech issue is not likely to be considered, but rather the narrower question of whether these laws can be challenged as unconstitutional even if no one is successfully prosecuted. What's being suggested is a preemptive strike against the laws, which would be sort of like attacking a capital punishment law with no convicted killers sitting on death row.
Of course the real issue is the latitude for snipping we allow in the political arena. The bar already is pretty low. Politicians, their supporters and opponents often take shameful liberties with the truth. To cite but one example is the ongoing and bogus claim, say, by a sitting president that when unemployment drops, it's because of his programs. When joblessness increases, invariably the claim by his opponents is that the higher rate is the fault of the president's policies.
Is there a politician around these days -- local, state or federal -- who doesn't claim an elixir for creating jobs? That claim may not exactly be a criminal lie, but it doesn't exactly nestle next to honesty either.
And it's not like the current crop of politicians invented the technique of reality invention. Political falsehoods have a long and storied tradition in American politics. Lyndon Johnson ran as the peace candidate in 1964 against Barry Goldwater, who LBJ painted as a war-monger. Johnson, of course, was secretly moving the nation toward war in Vietnam. That constitutes a pretty big lie.
Does anybody actually believe waterboarding isn't torture? The George W. Bush administration era politicians continue to foist that fantasy on Americans.
Point in fact, Americans have to put up with a lot of falsehoods and the high court has shown a decided reluctance to stop them. Two years ago the justices in a 6-3 ruling threw out the conviction of a man who falsely claimed he was a Medal of Honor winner. After Navy SEAL Team 6 took down Osama bin Laden a shocking number of men claimed they'd been SEALs. If the court had ruled against the phony Medal of Honor claimee, wouldn't we be obliged to ferret out and prosecute the phony SEALs?
"I hope the Supreme Court will not say that free speech protects your right to lie," Timothy Jost, a law professor at Washington and Lee University told the Los Angeles Times. "At some point, you should not able to consciously lie about your opponent."
In a perfect world, he's right. And political lies can be pretty conspicuous to anyone really paying attention. But politics doesn't always reflect attributes we might associate with a perfect world. And trying to fashion a law -- or in this case laws in 16 states -- that makes lying in politics punishable carries its own perils.
Obviously, there are worrisome risks with letting blatant lies go unchallenged in the public arena. Lies repeated often enough too often become truth to some. One of the most troubling aspects of court rulings such as the high court's 2010 Citizens United case was that it opened the political money spigot to corporations and unions. That means they can drown out other voices. If they're lying -- and they will -- the truth might never be heard.