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Lies, Damn Lies, and Constitutionally Protected Political Speech

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When he was elected in 1994, Wes Cooley might have been the perfect Congressional candidate for the Oregon’s rural 2nd District.

A brash, straight-talking rancher, Cooley was about as outside the Beltway as you could get.  He’d only even first entered politics two years prior, winning a seat in the Oregon State Senate his very first try.  A self-made rural millionaire, Cooley had joined the army out of high school and quickly worked his way up the chain of command.  He’d been in Special Forces in the Korean War and was highly decorated.  After the war he earned a law degree and a master’s, graduating Phi Beta Kappa. He was, in short, a movement conservative’s wet dream.

WescooleyA man who worked the land with his bare hands, he knew better than anyone what a bunch of hooey those environmentalists were spewing.  A man of academia, he knew better than those eggheads in DC what the law books really said.  A man of the military, he knew the inherent danger of electing a pinko draft-dodger to the oval office. He even had that most obligatory of all male GOP-candidate accessories: a wholesome, slim, busty bottle-blonde wife that dressed in a way that broadcast “sexy but not liberally sexy.”  There was, however, one small problem with Cooley:

Almost nothing he had claimed about his life was true.

He’d been in army, but not during the Korean War and had never seen combat.  He’d never served in Special Forces, never been decorated, never gotten a law degree or master’s, and never graduated Phi Beta Kapa. He may not have even been legally married — and if he was he and his wife were surely committing federal crimes by cashing her Department of Veteran Affairs benefit checks assigned to her when her first husband had died.  As it turned out, he wasn’t even a rancher and he didn’t live in the 2nd district.  The Cooley’s sold “vitamins” that promised to cure ailments they did not via mail.

When all of this was brought to light well after his election, Cooley initially refused to step down.  Members of the GOP leadership, led by Newt Gingrich, talked him into withdrawing from the 1996 election just prior to the State of Oregon finding him guilty of submitting false documents for the state voter’s pamphlet. (To this date, Wes Cooley remains the only Congressman ever convicted for lying to voters.) Cooley would later go on to face arrests for stock fraud, running pyramid schemes, and tax evasion.

And as strange as the Wes Cooley saga was for we Oregonians who lived through it, this summer the Supreme Court is widely expected to begin down a road that will do something even stranger: Rule that since he was a candidate for public office, Cooley’s lies regarding his education, marriage statues, military service, occupation, criminal record and place of residence should have been protected by the first amendment.

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On August 22, SCOTUS is scheduled to hear oral arguments for Susan B. Anthony List v. Driehaus.  The case revolves around Ohio Revised Code 3517.21, which makes illegal certain types of blatant untruths strategically used in political campaigns.

For example, 3517.21 states that if you are running for office, you cannot claim to have held public offices that you never held, or claim that you have no criminal record if in fact you do.  Nor can you claim to have a professional designation or certification you have never earned.  You’re also not allowed to make certain types of false statements about others, such as made up claims that your opponent was once under investigation for embezzlement, or that they have contributed significant amounts of money to an unpopular political cause — say, the Nazi party or NAMBLA.

Lies ConceptThere are, of course, a million ways to play dirty in American politics, and many of those strategies use language to bolster one’s self or undermine others without quite falling afoul of 3517.21.  For example, a candidate can make predictions about what might happen if they lose: If elected, my opponent will set back women’s rights 50 years!  He or she might also state his or her own opinions: I have yet to see anything that convinces me to believe evolution is real.  Sometimes candidates make statements that are true and yet still be misleading: I am a “successful” businessman.  Politicians can even make claims that are so nebulous as to not be objectively right or wrong: My opponent is not a true heartland American. All of these kinds of statement might (or might not) be dishonest, but they aren’t really lies.

It’s important to note, then, that 3517.21 does not address this type of potentially dishonest behavior — rather, it deals with those kinds of political statements that are clearly, knowingly, and demonstrably whoppers.  That is certainly the case with Susan B. Anthony List v. Driehaus.

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The Susan B Anthony List[1] (SBAL) is a national anti-abortion non-profit that looks to support pro-life candidates in local elections.  In 2010, SBAL targeted Steve Driehaus, the Democratic representative from Ohio’s 1st district.  As part of their campaign against Driehaus, the nonprofit bought billboard space to dispaly the message that he had voted to fund taxpayer-funded abortion.  This claim was untrue — and it bears noting that SBAL does not dispute this.  From SBAL’s point of view, its mission was not to inform the public; its mission was to oust a pro-choice candidate.  Lying is simply a tool they wish to have in their arsenal, and they argue that the first amendment protects them in this capacity.  And it appears likely that the Supreme Court is going to agree with them.

Now, the case before SCOTUS is not to determine whether or not lies in the cause of ideology is protected under the first amendment, but rather whether or not SBAL has the standing to file suit since it suffered no real damage.  (Driehaus went on to lose the election without an assist from said billboard.)  Still, it is likely that SCOTUS will not only rule that SBAL’s case is “ripe,” but also — if and when it snakes its way through the courts again — that ideologically-driven lies are protected speech.  Justice Sotomayor has already gone on record that she thinks Ohio’s Revised Code 3517.21 is unconstitutional, and Justice Ginsberg has essentially agreed.  What’s more, as of the beginning of this month every brief filed for Susan B. Anthony List v. Driehaus has argued on behalf of the plaintiff, even — I swear I am not making this up — the one by Ohio’s own Attorney General.

And we already have a ruling from a similar case with this court, with The United State vs. AlvarezThat case was similar to the case of Wes Cooley, though to a watered-down degree: In 2007 Xavier Alvarez, an elected director of the Three Valley Water District in Pomona, California, lied about having earned the Medal of Honor. This turned out to be bad timing on his part. Two years prior George W. Bush and a GOP controlled Congress had passed the Stolen Valor Act, which said that although politicians could tell lies to get us into wars, they weren’t allowed to tell untrue war stories about themselves afterwards.  As attempts to make political officials accountable to the public go, the SVA was laughable.  It was little more than a cultural signaling meant to stick it to John Kerry just one last time.  The SVA was, at best, a mere drop of water in the vast, vast ocean.  The thing of it is, though, even a mere drop of water is still water.

xalvarezSCOTUS looked at the Alvarez case in 2012, and ruled 6-3 that Alvarez, being a political figure, had every right to claim that he had won the Medal of Honor even though he had not.  In doing so, the court also legally (and perhaps unwittingly) exonerated Cooley, who had really done the same thing albeit to a far greater degree.  If Susan B. Anthony List v. Driehaus proceeds as expected, it will be yet another brick in the wall defending ideologically driven lies in the name of the first amendment.  This, I humbly suggest, is a wall we carefully consider before fully erecting.

Imagine if you will that you own a small hamburger joint in your area that happened to be right across the street from a McDonalds.  Imagine as well that in an effort to steal away customers, you put out advertisements falsely claiming that your cross-street rival had been cited on numerous occasions by the local health department and that several children had been made sick by their tainted meat.  In these advertisements you also claim that your establishment had won three Health Department Awards in a row, despite the fact that such a thing does not actually exist.  Your utter lack of moral standing aside, I think we can all agree that you would be breaking the law — and that in no time at all, you’d have a friendly series of “meetings” at your local court house with judges, juries, and the nice, helpful people of McDonald’s legal team to assist you in understanding your error.

We as a society agreed a long time ago that the freedom of speech does not protect you from legal consequences borne of false statements.  If a high paying position is given to you on the basis of your stated education and professional experience, that company can sue you for damages later on if it turned out you committed fraud when applying.  If your rival begins dating the gal you lusted after, you are not allowed to send emails to his employer, co-workers, neighbors and family saying erroneously that he was once arrested for selling child pornography.  If you are not a licensed physician, you cannot claim that you are.  If a research team at Harvard never tested your new protein bar, you cannot say that they declared it superior after clinical trials.  oprah_cutWhen Oprah Winfrey did a special on Mad Cow Disease and some of the facts reported were questioned, she was sued by Texas ranchers for millions of dollars for running afoul of the False Disparagement and Perishable Food Products Act of 1995.  You can get on the wrong side of the law by making libelous product reviews, using less that flattering adjectives for meat, and unjustly accusing women in your church parish of being “fornicators.”

Mind you, slander, libel and fraud cases are tough to win.  Judges and juries are far more likely to find in favor of the defendants in these cases — and that’s more likely than not a good thing in our litigious society.  But hard-to-win or not, slander, libel and fraud are still against the law. It’s one thing to have a judge say that you didn’t adequately prove that you were damaged by your neighbor when he falsely told everyone you were a drug dealer; it’s another thing altogether to have that judge say your neighbor has every right to do so.

Why then, should we agree this behavior is acceptable when practiced by people in politics?

Before you answer, consider another case that took place in Iowa in 2010, at the exact same time SBAL was attempting to put up its inaccurate and misleading billboard.

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As I discussed two years ago, Iowa Congressman Bruce Braley was running for reelection when opposition TV ads began playing heavily in his district.  These ads ominously claimed a link — unsubstantiated and non-cited — that Braley had ties with terrorist groups, and was working with them in conjunction with his efforts to get the so-called Ground Zero mosque built in New York City.  (Not only did Braley have no such ties, he hadn’t even commented one way or the other on the Ground Zero controversy.) What’s more, there was no way to tell who was behind for the ads.  As I noted back in 2012, they were paid for by the AmericanFutreFund, which was owned by the Center to Protect Patient Rights. Each existed as nothing but a PO box in Phoenix, AZ. This, then, is the likely product of this “political free speech” that SCOTUS is expected to hand down.

Also bear in mind the fact that in the Alvarez case, no one was running for office.  Rather, the court ruled that a sitting government official was allowed, as part of his regular duties, to lie to his constituents because those lies were protected by the first amendment. Setting political officials up as a separate class of people who are legally allowed to make false statements as part of their job is the very opposite of government transparency. And if you don’t think there’s a double standard there, try it out the next time the IRS audits your business: “Why, yes sir, I did lie about all of these various deductions — but I think you’ll find that those lies are protected by my first amendment rights.”

Of course, I can certainly see how laws like Ohio’s 3517.21 could be abused.  (In fact, I’m a little surprised that Karl Rove hasn’t already made use of it just to get candidates his backers oppose gummed up in the courts.)  And I understand that there will be some situations out there where the truth about a contested claim won’t be so black-and-white.  But on the other hand, so the hell what?  We have these libel, slander and fraud laws on our books for every other segment of society as long as we’ve been a country, and we’ve managed to muddle through just fine. The fact that I can’t write a series of posts falsely claiming there was a rattail in my quarter pounder hasn’t brought commerce grinding to a halt. The fact that Wes Cooley is the only congressman in the history of our country to be convicted of such a thing suggests that politicians aren’t exactly going out of their way to make prosecuting politicians for lying a fad.  (Except in pretend trials, that it.)

Where does the exact answer lie (no pun intended)?  Where do we draw that elusive free-speech line in the political sands?  I confess I’m not entirely sure. But if the biggest knock against Ohio Revised Code 3517.21 so far is that it doesn’t let political campaigns tell people that certain candidates voted for things they didn’t vote for, I’m willing to start there and see how it goes.

Your thoughts?

 

[1] Can I just say how weird I find it that there’s a conservative pro-life group out there named the Susan B. Anthony List?  It’s like finding out there’s a progressive anti-handgun group that’s calling themselves the William F. Buckley List, or an urban minority outreach program that goes by the Ayn Rand List.

Seriously, was the Che Guevara List already taken?

 

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96 thoughts on “Lies, Damn Lies, and Constitutionally Protected Political Speech

  1. Increasingly (or so it seems), the rich, powerful and political are writing laws that exempt themselves from liability and regulation, with Sup. Ct. blessing.

    How many successful prosecutions were there related to the mortgage meltdown? As best I can tell, virtually none because in large part what the investment banks did was perfectly legal.

    Money equals speech, really? (No — money is the volume control.)

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  2. American Politics, all the money makes our elections really really entertaining.

    I get what you are saying and why but the general jurisprudence of the First Amendment has been to more and more speech. The No Law part of the First Amendment makes it a truly post-modern Amendment. There is no truth, there are “truths” In other contexts, Justice Harlan wrote that one person’s vulgarity is another person’s lyric (Cohen v. California). Americans seem to be addicted to hyperbole in a way that puts Poe’s law into overdrive. It is hard to determine who are the snake oil salesmen and who are the true believers who really believe what they are saying. Your lie or mischaracterization is another persons deeply held truth and vice-versa. Wes Cooley was a snake oil salesman and a true believer probably. For many in this country, the hustle seems to be the basic mode of economic thought. There seems to be a lot of snake oil in our economics and politics. Of course there are people who would accuse me of being the snake oil salesman and I would do the same for them, etc.

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      • I happen to agree with the dissent in Citizens United and McCutheon. Money is not speech but it is the money that makes the speech more problematic than the speech itself. There are serious issues about defining truth and I am not sure I want courts in the business of telling people what the truth is or not when it comes to political speech.

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      • I don’t particularly want the courts telling people what to say, but there a line where every absolute belief crosses into crazy town. I’m very much a first amendment supporter but if the question is can someone tell a factual lie, that they know to be a lie, but it is all good because its politics we may be at that point. There are plenty of opinions people can say that are completely slanderous but they aren’t factual untruths. Absolutes are easy and neat and feel great but may not work out so great in the real world.

        People of every stripe complain incessantly about being lied to be our pols. The biggest reason we get lied to is their is often no actual consequences. Not that people shoudl be punished for a slip of the tongue but pols lie because its easy and neat and works well for them.

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      • “I’m very much a first amendment supporter but if the question is can someone tell a factual lie, that they know to be a lie, but it is all good because its politics…”

        You have uttered any number of statements which we could, in good faith, argue were factual lies, that you knew to be lies.

        They weren’t, and you didn’t, but it can be argued.

        And prove to me that you didn’t know they were lies. Better make it a good proof, because otherwise you’re going to jail.

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      • double facepalm….What factual lies have i told Jim? You tracking? Where did i recommend jail for anything? Can you tell the difference between A) If my opponent is elected things will get worse and B) My opponent is a child molester. Hint: one expresses an opinion, one makes a factual claim.

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      • “What factual lies have i told Jim? ”

        I don’t know. And–here’s the point–neither do you. If “factual lies” are a reason to put someone in jail because “a line must be drawn”, then anything you’ve ever said becomes a subject of discussion.

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      • Impressive fail Jim. You accuse me of lying then can’t say when i’ve lied. I never suggested putting someone in jail so your reading comprehension seems poor. That something can be argued is a tedious point that proves nothing. Anything can be argued. So what.

        There are factual claims that people can make that may or may not have any proof. In the SA case they seem, based on Burt’s summary, to know they were claiming something as fact that they knew not to be true. How about this: If someone says “opponent beats his wife” , this a factual claim but is there any proof for it? I don’t think ideology should be a complete shield for knowingly making false factual statements. I haven’t thought through a remedy or whatever, so have fun with that

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  3. My feeling is that the Supreme Court is problem right to declare Ohio’s 3517.21. We have decided that the First Amendment’s protection of free speech should be interpreted broadly since the mid-20th century. This is why you can prosecute for cruelty to animals but you can’t ban the making of videos that depict cruelty to animals. Its also why the torts of libel and defamation have basically been rendered nearly meaningless by the courts since the Sullivan line of cases. If a political ad or campaign is filled with really big lies than the Constitutionally proper response is to point this out and hope voters pick the truth, not to ban the lies in the first place. Being called out for your lies is seen as the proper consequence these days.

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  4. Isn’t this partially a prior restraint issue? From the description in the OP, it appears that SBAL, for example, was either not allowed to put up the billboard or was told to take it down. It doesn’t seem (again, from the OP’s description) that SBAL was sued by the opponent for damages. If SBAL had been sued, wouldn’t the suer have to demonstrate actual malice because of the public figures involved.

    Also this:

    Of course, I can certainly see how laws like Ohio’s 3517.21 could be abused….And I understand that there will be some situations out there where the truth about a contested claim won’t be so black-and-white. But on the other hand, so the hell what? We have these libel, slander and fraud laws on our books for every other segment of society as long as we’ve been a country, and we’ve managed to muddle through just fine.

    I think the potential for abuse is one of the main arguments for declaring 3517.21 unconstitutional. It’s one thing for a candidate’s supporters with deep enough pockets to defend themselves against a (legitimate) charge of lying, and another thing for a third-party or insurgent candidate on a shoestring budget to defend against a(n illegitimate) charge of lying.

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    • This. I’m not sure how I could characterize ORS 3517.21 as anything but a prior restraint. And bear in mind, speech that needs Constitutional protection is almost never palatable speech.

      But what would the world look like if it were the other way? It would look like the government telling political candidates what they can or cannot say, based upon the “truth” as the government sees it.

      Expansion of the Alvarez rule to a situation like this is, I sadly conclude, the lesser of the two evils. And it’s difficult to use the extra-legal tool of shame to deter lies, because the sorts of people who ORS 3517.21 is aimed at are shameless.

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      • “It would look like the government telling political candidates what they can or cannot say, based upon the “truth” as the government sees it.”

        That’s an ominous way of putting it. I’m curious — do you frame it that way when you’re talking about corporations, or citizens?

        If SBAL not being allowed to say someone voted for something he didn’t is so 1984, why shouldn’t we protest when the government tells a snake oil salesman he can’t claim his tonic cures cancer? I’m not getting the difference.

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      • I think the problem is that you combine rulings of this sort with the public figures standards of having to prove malice for defamation. (Especially since you can set traps where the very act of calling something libel might lend more legitimacy to the opinion being fabricated).

        While I don’t like the UK’s defamation laws, surely there’s a middle ground between the US standards and the UK’s which we can stand with. For example, transparently false claims about a candidate’s political positions that can be proven via public records should automatically be judged as having been malicious in its nature. (Or for that matter campaign activities in general)

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      • Do you think, , that a jury possesses the ability to infer malice out of the circumstances? In your hypothetical, there are transparent lies about the opponent told during a political campaign. The inference of malice seems pretty easy there — which is, of course, why you suggest that the law presume malice in particular factual situations. I wonder whether such a presumption need be spelled out in advance, or whether we can rely on juries to make these inferences on their own.

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      • I think it might need to be spelled out because the word malice can have some different meanings depending on whether it’s being used legally or colloquially. Further, the fact that we see so few libel cases by public figures leads me to believe that the legal profession as a whole believes this area to be unprofitable and therefore won’t take cases even from super rich clients.

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      • I will grant without hesitation that the law has been particularly clumsy about the word “malice,” which has many similar but technically different factual definitions depending on the legal issue under analysis.

        For your reference, the actual jury instruction given in California on the point raised by the OP (you’ll need to forward through to page 982) reads as follows:

        [plaintiff] must prove by clear and convincing evidence that [defendant] knew the statements were false or had serious doubts about the truth of the statements. CACI 1700 (emphasis added, modified).

        Now, there is almost inevitably going to be some confusion about the phrase “clear and convincing evidence,” which is unhelpfully defined on page 120 of the above link as:

        Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof [than “more likely than not”]. This means the party must persuade you that it is highly probable that the fact is true. CACI 201 (emphasis added).

        I’ve never really liked that one, myself. I think it confuses more than it illuminates.

        But maybe I’m wrong about that. Do you think these instructions are clear enough that people of ordinary intelligence and good faith can be expected to apply them correctly?

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    • yes, allowing prior restraints is a terrible idea. Spend any time at popehat; you’ll see that it’s the powerful who use weak speech laws to suppress the dissent of the powerless.

      but.

      Is there really no effective remedy for actual lies? Libel is acceptable in a political campaign? That just seems so cynical.

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      • “Is there really no effective remedy for actual lies?”

        The truth?

        Think of how many lies about Barack Obama would not have been told if he’d just released a copy of his birth certificate.

        “But Birtherism was a stupid foolish insane line of attack and only a crazy dumb person would have taken it seriously! If Barack Obama had released his birth certificate then he’d have been giving legitemacy to that criticism!”

        Yes, and? That lack of legitemacy didn’t stop it being an actual area of discussion well into Obama’s first term.

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      • Is there really no effective remedy for actual lies? Libel is acceptable in a political campaign? That just seems so cynical.

        First, I would phrase my position slightly differently and not say that libel, or lies, are “acceptable,” but that it’s better to have a system that allows them than to have a system in which people could be hamstrung by spurious accusations that they’ve been lying. For me, it’s not so much that the courts would never decide in their favor, but that, say, a candidate accused of lying would find his/her funds tied up in a legal defense. In this way, I see such laws as enabling another form of SLAPP suits.

        Second, and this sounds glib, the most egregious lies, the ones for which the pol is most likely to see his or her comeuppance, will usually flounder on their own. Take the OP’s starting example of Wes Cooley. His lies were egregious and for all I know helped him get elected. But after 2 years in Congress, he was pressured to step down or not run again, so in that sense, the remedy was political and not legal.

        I realize that remedy is not a perfect one. Mr. Cooley, from what I understand, had served in the state legislature without being called on his lies. And it’s probably the case that during his two years in Congress, he did all sorts of shenanigans that he might not have gotten away with if an anti-lying law had been on the statute books, on the presumption his lies might have been called out earlier. And regardless of how much he harmed people while in office, his lies probably deceived at least some voters who otherwise wouldn’t have voted for him.

        Still, however imperfect, there was a remedy and in that case, the remedy worked rough justice.

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      • “Is there really no effective remedy for actual lies?”

        The truth?

        Empirically, not really, no… at least, not always.

        (Not that this implies that there’s necessarily a better solution, to be sure… but “counter lies with the truth” isn’t an effective strategy, either).

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  5. Your characterization of the Stolen Valor Act isn’t quite accurate. It was part of a long response to a self-published book called “Stolen Valor” that gained traction over time. Stolen Valor catalogued countless cases of people lying about having served, winning medals, and so on*. The law was introduced in the House and Senate by Democrats. It was more of an exercise in flag-waiving than a particular shot at John Kerry.

    * – The book was about more than that and was actually a revisionist look at the Vietnam War more generally. It made the case (or attempted to) that much of the narrative surrounding the war was perpetuated in part by people who claimed to have served but did not.

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  6. He even had that most obligatory of all male GOP-candidate accessories: a wholesome, slim, busty bottle-blonde wife that dressed in a way that broadcast “sexy but not liberally sexy.”

    Since you’re on the whole “War on Women” thing, this strikes me as somewhat condescending. Nobody’s more inclined to scoff at claims of “objectification” than I am, but you literally called her an accessory. I get that you’re trying to satirize how you think certain Republicans view women, but still.

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      • yes, and they are kicking my ass.

        Well, my ‘hobby horse’ is harassment and no such a lately thing.

        As to the complaint, if you find it sexist you find it sexist. For me, noticing that there’s a certain kind of conservative male candidate that runs partially on the sex appeal of their (oft times second) fake blonde wife is sexist in the same way that noticing all the women on Fox News are expected to be of one body shape and young and all the men can be fat and old.

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      • If I may, I think what is saying is that assuming his motivation based on the appearance of his wife seems unfair. If the argument is that he needs to date a dumpy woman to be seen as sincere otherwise we will assume he is dating the buxom blonde to serve as arm candy, we are making her eye candy, not him.

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      • Again, the quoted section: “He even had that most obligatory of all male GOP-candidate accessories: a wholesome, slim, busty bottle-blonde wife that dressed in a way that broadcast “sexy but not liberally sexy.””

        You are referring to her as an accessory, as an object. Is there anything in Cooley’s history to suggest he sees his wife as such aside from her physical appearance?

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      • No, there isn’t.

        There is, however, ample evidence to suggest that she and her husband were both professional grifters, and that they dressed her up to play a certain role that was expected of a golden-child political up and comer.

        Again, if you think noting that is inherently sexist, then you think noting that is inherently sexist. I tend to disagree, but I’m neither offended by your claim nor am I invested enough in this to argue back and forth about something we probably aren’t ever going to see eye to eye about.

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      • I don’t think it is necessarily sexist to notice tendencies.

        It is one thing to say, “Hey. All the GOP candidates have similar looking buxom, bottle-blonde wives. And they all dress the same. What’s up with that?”

        It seems, to me at least, another thing to say, “Hey. This GOP candidate has a buxom, bottle-blond wife. She must just be an accessory he picked up to improve his candidacy.”

        It seems you’re saying the latter.

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      • I believe, though I could be wrong, that Tod is pretty much saying that Mrs. Cooley was an active participant in the con, essentially disguising herself as the sexy blond younger wife as part of an image that she, with her husband, was cultivating. In other words, she wasn’t an accessory, she was an agent who was integral to the image she and her husband created. I think that’s a pretty good way of arguing that what Tod’s doing is not sexism.

        But then I would say that about a fellow centrist. *Non-committal high five to Tod*

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      • A comparison might be to Tammy Fae Baker, who was definitely part of the act and the con with Jim Baker. She played a role, with all the make up and tears that went along with it. She was not a naive waif who just happened to be there as an accessory to Jimmy boy.

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      • Jim, the problem with being a myopic reader is that it makes you look like an incompetent one.

        Shaz, even though I didn’t like Tod’s use of the phrase “war on women,” I can’t figure out what his statements here has to do with his previous use of it. I’d ask you to flesh it out, but since it just looks like you’re playing “gotcha,” I can’t imagine it’d be worth your time or mine. Of course the “gotcha” stuff started with Brandon, so it ain’t all your fault, but man, it’s annoying. “Look!!! Look!!! Everyone, over here!!! Tod’s doing something vaguely comparable, if you squint at it just right, to what he was criticizing just the other day. I scored points! I scored points!” Is there any other point to it?

        (Wait, is this me being “above it all” and all centrist-like? I take it all back, because it can’t possibly be a valid point now.)

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      • and

        If that is indeed what Tod was intending (and I have zero reason to not take Tod at face value when he says that was his intent), I would only ask that he flesh that out a bit more.

        He still runs the risk as seeing the wife as a mere extension of her husband. Is it not possible that she dyed her hair and dresses the way she does because that’s just how she likes to roll, regardless of whether it benefits her husband’s political career?

        Right now, it just feels like conjecture rather than anything substituted, at least with specific regards to teh wife and her physical appearance. And I do think that conjecturing around a woman’s (and only a woman’s) physical appearance does legitimately raise the question of whether something sexist is afoot.

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      • @rtod It’s not really about his motivations, or about him at all. It’s about the fact that she’s a person. Dismissing her as an “accessory” based on her appearance and her husband’s party affiliation isn’t fair to her or to other women in similar situations.

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      • I am reiterating how wrong it is to claim that liberals (in general) are “joining the war on women.”

        Tod is not joining that war. Nor are centrists in general. But if I made the claim that centrists are joining the war on women, I would be making a serious (and quite frankly irritating and misleading) mistake. That is the mistake Tod’s piece made. We all seem to accept that this is so, but I am getting general snark directed at me which deserves and can be given no substantive response.

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  7. I took at look at the briefs on SCOTUSblog. The opening brief of Susan B. Anthony List is … odd. Its argument begins in what is supposed to be a neutral statement of the case, as follows:

    Believe it or not, it is a criminal offense in Ohio, punishable by fines or even imprisonment, to make a knowingly or recklessly “false” statement about a candidate for political office or a ballot initiative. Petitioners are two advocacy groups that sought to challenge that law under the First Amendment. One group criticized a sitting Congressman’s support for the Affordable Care Act, labeling his vote for that Act as support for taxpayer -funded abortion. That group was then haled before Ohio’s elections commission, which — by a 2-1 vote along partisan lines — found “probable cause” to believe that such speech violated Ohio’s false-statement law. The other group wanted to repeat the same message, but refrained from doing so because of that enforcement action.

    Advocacy in this phase of a brief is supposed to be subtle, in the form of framing an issue, and not as overt as this.

    But something else rests uneasily with me here. It could be the cession of the moral high ground: SBAList really does seem to concede, as Tod describes, that a vote for the ACA really isn’t a vote for taxpayer-funded abortion, and even to concede that its leaders knew full well that this was the case. This is simply irrelevant to them. They lied, in the sense that they deliberately told a known untruth with the intent that others rely upon the accuracy of their knowingly false statement. And their attitude about it is “So the f— what? We have a right to say whatever we want.”

    Even more disquieting is the idea that the partisanship involved, the overt political contest underway during the contested campaign claim, somehow renders the truth not only irrelevant but plastic. There is no such thing as objective truth. Truth is an indeterminacy, a null set of factual propositions. Truth exists, if at all, strictly in the minds of the audience, and those who speak create truth. This is disquieting because it creates a situation in which various individuals hold contradictory and mutually inconsistent truths and all of them are equally true; and only a democratic vote can determine which truth prevails, except when it doesn’t as here, because truth is not only relative on a partisan basis and plastic to the extent necessary to persuade a credulous audience, but also irrelevant because what matters is getting votes, which will retroactively redeem the truth.

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  8. I think I remember this guy, but he was in no way the strangest thing. Remember Bhagwan Shree Rajneesh? I still have a “nuke sheilla” sticker on my Pee Che Folder from high school :)

    Now, on topic. Jeebus, this is so much BS. I guess I’m not surprised but really, does anyone really expect cannidates not to lie? They lie when they make promises, and when they list their qualifications, etc. I’m not sure what can be done to prevent that. Post lies, I think there is more opportunity: Recals, etc. And why couldn’t you charge a politican with fraud or false represenation?

    Lawyers, do tell.

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  9. Actual facts and ‘truth’ don’t matter, it’s the appearance of actual facts and truth that matters. Lies, in the service of greater good, are honorable. Cheating, as long as you don’t get caught, is honorable.

    Since ideas and ideology obviously matter more than facts, we can all be Scarlet O’Hara, dressed in green draperies, at the ball. Nobody will notice that the windows are bare.

    I’ve been trying to think of the root of this cultural evil; and I’ve finally settled on Clement Moore and Haddon Sundblom. Thanks to their poetry and art, respectively, we teach our children that it’s okay to lie, so long as they profess belief, bringing goodies so long as we appear good. Christmas and Santa; the rot at the core of us.

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    • Folks should go and reread the Old Testament. YHWH loved the schemers and the liars, so long as they increased His glory. The fundamentally rotten idea is that there can be any good that is greater than truth as a faithful and widely distributed representation of reality. Jesus tried to make corrections, but the lies started building up again shortly after he died.

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      • YHWH loved the schemers and the liars, so long as they increased His glory.

        I’m trying to remember an instance of this, aside from Jacob and Esau (and even this story says that Jacob and his descendants gain unnecessary trouble resulting from his original deception IIRC) – all other liars and schemers, I thought ended up getting theirs sooner or later. Even those like David, “whom God loved”. Am I missing some?

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      • The woman with my name in the Old Testament tricked her husband into blessing their second-born instead of their first; apparently with YHWH’s blessing.

        (I keep wanting to supply the words that YHWH; best I’ve got thus far is Your Hot Women Here, in keeping with the search for a bride at the well that resulted in the aforementioned tricking).

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      • I’m not denying trickster behavior in the OT; I am questioning that such is unambiguously condoned by YHWH, since the examples (ESPECIALLY Eve) are generally morality plays showing the long-term “curse” of having engaged in deception (yea, even unto their children’s children).

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      • Isn’t lying and scheming a pretty regular thing in the Old Testament?

        Off the top of my head, Abraham lied to the Pharaoh about being married to Sarah, and David hatched a fairly heinous scheme just to bed Bathsheba (and lies to pretty much everyone). Tamarah is given twins by God for her scheme.

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      • Again, they lie and they scheme – and these lies and schemes are generally their ‘downfall’ (if not in their lifetime, in that of their descendants).

        For ex., in David’s case, the Bathsheba thing is basically what eventually risks bringing his whole dynasty down (via some pretty effed-up infighting for succession amongst his children). His adultery with her and the murder of her husband is his “original sin” or Achilles’ heel, and though it takes years for those chickens to roost, roost they eventually do, IIRC.

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      • What I am saying is that there’s stuff in the OT that is both seemingly-unambiguous and clearly-crazy to most modern eyes (YHWH telling the Hebrews to commit genocide on the Canaanites, or the whole “we should stone adulterers and homosexuals and back-talking children” thing).

        But it seems to me that even when the ‘good guys’ commit deceptions, the stories make it a point to show that deception almost always has negative consequences (your sins will find you out, though not always right away).

        But I am not a theologian or Bible scholar. Just relying on my old Sunday School recollections from childhood. Someone with more familiarity might say differently.

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      • I remember when I was in 5th grade or so and started reading the Bible on my own. I was very disturbed by some of the OT examples, among them the Esau and Jacob rivalry. I thought it was horrible that Jacob would force his starving brother to sell his birthright for food. However, and duly noting that I’m not a theologian either, I tend to see such episodes the way you do.

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    • I can guarantee that neither Clement Clark Moore or Harold Sunbloom were part of my childhood. Those are rather odd cultural examples. Harold Sunbloom is probably too dated as an example.

      Everyone lies or omits the truth. Anyone who says that they never lie or shift the truth to make themselves look better is a grade-A Pinnochio. Now very few people mount the number of disillusions like Wes Cooley but everyone has probably said things in a resume to look them slightly more important at a job or said things on a date or to friends to make them slightly more worldly, attractive, sexually experienced. Or at least omitted a fact or two.

      http://www.slate.com/articles/double_x/the_kids/2014/05/children_lie_parents_should_teach_them_not_to_but_also_know_that_lying_is.html

      According to this article, lying is part of childhood development. It is hardwired into our brains. Lying is not something that is taught from on high.

      Otherwise, I generally agree with you. We have a winner take all society and there are plenty of parents who do explicitly teach their kids that lying/cheating is okay as long as you don’t get caught and honesty is more likely to be punished than rewarded. A few years ago, the other high school in my town had an SAT cheating scandal. A previous graduate took the SAT for a bunch of other kids using fake IDs, etc. SAT security is a bit lax it seems. He charged them 2-3 grand to take the test. The only way a 16 year old gets that kind of money is from mom and dad probably. The parents had to know.

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      • Everyone lies or omits the truth. Anyone who says that they never lie or shift the truth to make themselves look better is a grade-A Pinnochio.

        Agreed. The worst (well, maybe not the worst, but pretty bad) are the people who claim that they are “just too honest” or “always must tell it like it is,” because in my observation, such people have usually been very selective about their truth-calling and very adept at lying to themselves and others.

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  10. I think politicians who lie to start wars or pass large comprehensive legislation or to get elected should at least be disqualified to govern. One of our main problems is that we can’t trust those in powerful government positions, and we can’t trust them because they lie so often. Or we can just laugh at Jon Stewart making fun of them and let it slide.

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    • MFarmer, Welcome back. Everything you said is true and would still be true if you changed “politicians and those in powerful government positions” to business owners and ceos. Do I trust Bayer, Monsanto, Dow, Marlboro, the ones trying to build nuke plants, and THE BANKS etc, etc? Nope!
      The difference is, that with a lot of hard work and luck, we can get rid of the crooked pols and hire ones that will rein in the corps.

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  11. Need we make such acts criminal? Couldn’t we simply make one’s conduct during the election process part of the job requirements for the positions? “The President must be a US Citizen, 35 years of age, and conduct himself honestly during the campaign.” The government is essentially employing these people. My school employs me. They set criteria for that employment. Why can’t the government?

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  12. I’m not sure I agree with your premise here, My Tod. To my knowledge, political expression isn’t exempted from libel laws. If you make a false statement about someone in the political realm and that statement meets the high legal bar for libel, you can be sued and be required to pay damages no less than in any other realms. Some quick Google-fu, for instance, turned up this example: http://www.wral.com/cooper-settles-libel-suit-from-2000-election/13576483/

    The issue here is the prior restraint – and even in libel suits, prior restraints are unconstitutional except in very rare circumstances where there is some other tort at issue that forms the basis for the prior restraint. And even in those circumstances, the restraint needs to be narrowly tailored in a way that the Ohio statute here is probably not.

    While I have serious problems with the concept and Constitutionality of food libel laws, it’s worth mentioning that even in the case of food libel laws, prior restraints are no less likely to be unconstitutional.

    The point is that we’re not treating allegedly false political claims any different from how we treat false claims in other situations.

    What makes the Ohio statute here even more problematic is that the truth or falsity of a claim is initially determined not by a independent court but by a panel of political appointees that are part of the executive branch of the state government.

    In this specific case, although SBAL now seems uninterested in asserting the truthfulness of its claims, the truth or falsity of the claim at issue is also quite subjective. This isn’t a first-order claim whose truth can be readily determined such as a claim that a candidate did or did not get a degree; instead, it’s a claim that the candidate’s support for PPACA was tantamount to supporting taxpayer-funded abortion. In other words, it was a claim about second order effects, and at the time, it was at least arguable (albeit not a terribly persuasive argument) that PPACA would permit that. After the ad aired, the Obama Administration issued an executive order conclusively refuting this argument, but the point is that at the time the ad aired, it was at least an arguable proposition.

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    • Also, it’s worth mentioning that Cooley was convicted not of lying in his own campaign literature, but rather of lying in his submission to the state-published voter information pamphlet. Lying on that would be tantamount to perjury, and indeed, so far as I can tell those submissions must include sworn statements as to their truth (see here, p.21: http://sos.oregon.gov/elections/Documents/orestarVPFiling.pdf ). In other words, a finding that the Ohio statute is unconstitutional would not in the least bit mean that the charges against Cooley were unconstitutional, and Cooley’s actions would be no less and no more illegal than they were 20 years ago.

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    • “..it’s a claim that the candidate’s support for PPACA was tantamount to supporting taxpayer-funded abortion.”

      IANAL, but they’re still clearly lying; there are a lot of legal restrictions on federal funding for abortions.

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  13. Jim Heffman

    “Think of how many lies about Barack Obama would not have been told if he’d just released a copy of his birth certificate.”

    Considering that they just kept on lying, I’ll file this with the previous statements you’ve made on this thread.

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  14. Gabriel Conroy
    May 20, 2014 at 11:44 am

    “I remember when I was in 5th grade or so and started reading the Bible on my own. I was very disturbed by some of the OT examples, among them the Esau and Jacob rivalry. I thought it was horrible that Jacob would force his starving brother to sell his birthright for food. However, and duly noting that I’m not a theologian either, I tend to see such episodes the way you do.”

    One thing to remember is that much of this stuff is descriptive ‘A did X to B’ and some of it is absolutely condemning. That still leaves a lot.

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