September 16, 2014

Susan B. Anthony List vs. Driehaus and "Free Speech"

This post is in response to a series of articles, hosted on the National Catholic Register, covering a court case between the Susan B. Anthony List and former Rep. Steven Driehaus, of the State of Ohio (my happy state of residence).  Here is NCR's summary of the dispute:

The SBAList ad framed Driehaus’ critical vote in favor of the Affordable Care Act as a vote for “taxpayer-funded abortion.” The congressman said that claim was false, and he threatened to prosecute the pro-life group under the state’s “false statement” law.
SBAList was then denied access to the billboard, as Driehaus turned to the Ohio Elections Commission for relief. The commission sided with the congressman, but the claim was dropped after Driehaus failed to win reelection.
Four years later, Dannenfelser argues that information about plans authorized under the Affordable Care Act that provide abortion coverage, and also receive federal subsidies, confirms the claims made in the campaign ad.
But Judge Black, in his ruling, emphasized that the actual truth or falsity of the ad campaign did not concern him. Rather, the question before the court was whether a government body should arbitrate such disputes in the rough and tumble of a political campaign.
“Here in Ohio, there is no reason to believe that the OEC [Ohio Elections Commission] is positioned to determine what is true and what is false when it comes to political statements,” stated Judge Black’s ruling.

In this article, I will discuss this case, and the resulting decision, in light of Catholic principles of morality and political ethics.  First, however, let me be clear: I am pro life, and support a right to life from conception to natural death.  Further, I agree with SBA List's claim that a vote in favor of the ACA supports government-funded abortions.  These two issues - whether abortion is right or wrong, and whether SBA List was correct - are not under discussion here.  I am, instead, going to talk about how free speech can and should be regulated in a just society.

Allow me to begin by discussing what the decision reached by Judge Black effectively means.  Judge Black ruled that the government committee regulating political campaigns does not have the capacity, and therefore the authority, to determine whether a particular claim about a candidate is true or false.  At an initial glance, this seems to make sense.  Particular political views of the OEC might cause them to penalize something as false when it is actually true, leading to an enforcement of "political correctness."  Moreover, the other side is still equally free to counter with their own claims.  Judge Black brings this up in his ruling, citing TV Drama House of Cards, "There’s no better way to overpower a trickle of doubt than with a flood of naked truth."

However, I do not agree with this decision.  Although Susan B. Anthony List's statements may have been true, and as such were not in violation of the law in question, the law itself is just.  Untrue, defamatory remarks made against a political opponent are sinful, as they constitute slander, and are also directly opposed to the common good in a democratic and republican government.  True knowledge of the positions and character of candidates for elected positions is necessary in order for the citizens of that district to make informed choices when electing their own representatives.  This is self-evident: in order to elect the right person, I need to know relevant things about all the people running for office.  Voting records, criminal history, or public statements are all relevant factors in determining which of a group of candidates is most fit for office, and as such statements on these matters directly impact the public's ability to elect the best person for the job.  Further, these statements are easily verifiable, as they pertain to public documents and records.  A false statement about voting records would not only unjustly damage that candidate's reputation, but would also directly harm the public's ability to manage their own government, and thus harm the common good.

Catholic social teaching follows St. Thomas' approach to law, which is in part derived from Aristotelian principles of political theory.  In this system, Positive Law - law made by human beings to regulate our cities and countries - is judged by two related criteria: consistency with Natural and Divine Law, and whether or not it serves the common good.  [These two are related because an authentic common good is always in conformity with Natural and Divine Law, but they are also distinct because the common good of one country may be different from another because of particular circumstances.]  The law of the OEC falls under this category of Positive Law, and as such ought to be ordered toward the common good.  As demonstrated above, false statements about political candidates are directly contrary to the common good of the American people.  Further, the OEC is the body appointed by the proper authority to regulate political campaigns, according to US law.  As a result, it seems clear to me that this law prohibiting false statements is both just and helpful to the common good.

This does raise a larger issue of free speech.  To what extent is speech free according to US law, and how free should speech be in a justly ordered society?  These questions are unfortunately too large to be addressed in this writing, but I can briefly comment on them.  It seems abundantly clear that unlimited free speech is not, and has never been, present in US law.  For instance, hateful speech, selling of state secrets, and perjury are all types of speech, and are all illegal.  As a result, the question is not whether all speech should be free, but rather which types of speech are for the common good and which are not.  In regard to US law, this ought to be determined like other things according to particular legislation and court precedent.

In regard to the ethics of free speech, I have already pointed out that slander is clearly sinful according to Catholic moral doctrine, along with other kinds of speech which offend against natural law, human dignity, and God Himself.  But should we have laws against blasphemy and racism because they are sinful?  This is a difficult question, which I think would need to be answered on a case-by-case basis, taking into consideration the nature of the offense as well as the character of the nation and culture in question.  This is generally the case in Catholic social teaching: there are some things which the Church states should always be illegal, such as abortion, pornography, or murder.  Other things, such as traffic laws, political structures, economic regulation, and public statements depend on individual countries and peoples according to the common good of each.

So, in conclusion, I cannot agree with Judge Black's decision.  The common good of the US people, because of our democratic government, requires that the public are well-informed.  However, I am also very sympathetic to the concern about heavy-handed litigation of "political correctness."  While the government does need to regulate political campaigns so that simple, factual matters are clear to those who need to vote, the government is not the ultimate arbiter of truth.  While the OEC can, and should, determine whether a statement unjustly impugns a candidate's character, the state of Ohio is not able to ultimately judge the right or wrong of abortion itself.  This creates a difficult task for legislators, which we need to recognize.  It is very difficult to walk the narrow line between too much and too little legislation, and to determine which laws do or do not serve the common good.  As a result, I think we owe our elected representatives the truth, as we together live in the land God has given us.



Anonymous Anonymous said...

Can a law by the government, granting authority to itself, to determine what is "true" be considered a just law?
I think the answer would be a resounding "NO".

September 16, 2014 2:52 PM  
Blogger Ambrose said...

Thanks for reading and commenting, Anonymous. I think the point where we disagree is in the nature of government. Your statement seems to imply that the government does not have authority in itself to make decisions, but is rather given this authority by some external being (I'll assume the general American concept of popular consent, but correct me if I'm wrong). This is a strong form of Libertarianism, and seems to me pretty common today.

The view I am working from is significantly older, and is the one which the Catholic Church works from in documents such as Rerum Novarum and Solicitudo Rei Socialis, encyclicals by Leo XIII and John Paul II respectively. This concept of human society and government is even older, and comes as I mentioned in the post from Aristotle's Politics through the brilliant thought of St. Thomas Aquinas, as he writes in his Treatise on Law within his Summa. I threw some links in there so you could gather your own understanding from the original sources, but the basic idea is this: governments are natural to human society, which is itself a fundamental and inseparable part of human life and existence. These governments have an authority proper to them according to the nature of human relations in God's plan, and as such regulate the things appropriate to them as a human cooperation in God's governing of the universe. As such, the government in regulating political campaigns doesn't need to grant that authority to itself - it has that authority already, according to the nature God gave to human societies.

I hope this helps explain what I meant before,

September 16, 2014 3:44 PM  
Anonymous Anonymous said...

Regulating societal good order and government establishing itself as the arbiter of truth are not the same issue.
One example of government being the arbiter of truth would be the ACA and its requirement to fund contraceptives and abortion. These violate the truth known from Catholic doctrine concerning the known truth about life and the Creator.
Truth and matters of conscience cannot be separated. Government is most often ruled by the political whims of the day and cannot legislate what may or may not be a "truth" contrary to their political whim.

September 16, 2014 4:44 PM  

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