Lying is free speech too

[Commentary] Does the 1st Amendment allow states to make it a criminal offense to disseminate false statements about a political candidate? Should citizens who fear that their free speech will be chilled by such a law be permitted to challenge it even if they aren't in danger of imminent prosecution?

Only the second question will be argued before the Supreme Court, but it is inextricably linked to the first one. If the court rules that the Susan B. Anthony List, an antiabortion group, may not challenge Ohio's criminalization of false political speech, that law and similar ones in other states will remain on the books. Citizens who believe that a law chills speech shouldn't have to surmount high legal hurdles to challenge it in court. If the court were to consider the constitutionality of Ohio's law, there are good reasons to believe it would be struck down. In 2012, the justices invalidated a federal law making it a crime for a person to falsely claim to have received military honors. In that decision, Justice Anthony M. Kennedy wrote: "The remedy for speech that is false is speech that is true." That observation is especially applicable to a political campaign. In extreme cases, a politician who feels his reputation has been besmirched by a false statement may file a civil libel suit. But using criminal law to police truth in political debate is unnecessary and invites abuse. A ruling for the Susan B. Anthony List in this case would be a first step toward recognition of that principle.