If you had any doubts that lies, falsehoods, or half-truths were fine during political campaigns, they should probably be laid to rest.

In a 25 page opinion  replete with bolded underlined language, Judge Timothy Black held Ohio’s statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.  The United States Supreme Court last term  heard the case as Susan B. Anthony List v. Driehaus on the issue of whether the matter was “ripe” for review, since no one was actually prosecuted under the law, and unanimously held it could be decided, sending it back to the lower courts.  The Court’s opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a “ministry of truth,” a characterization later echoed by Justice Scalia.

Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: “we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth.” (bold underlining in original).  However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).

These twinned rationales – – – the “Ministry of Truth” and the “flood of naked truth” – – – undergird the Judge’s doctrinal analysis, more of which is discussed here.  Although the judge gives a nod to his doubts that the truth will out given unlimited campaign spending constitutionalized by the Court’s interpretation of the First Amendment in Citizens United, that’s not sufficient to undermine the principles.

“A Naked Truth, or Nipping Frost” by Charles Williams circa 1803 via

The question of whether one’s artistic expressions can be be used against one in a criminal trial occurs with some frequency.  This is not about being criminally prosecuted for the expression itself, as in an obscenity case.  Instead, this is about using artistic expression as evidence to prove that a defendant’s intent or motive to commit the crime.

In such scenarios, Bob Marley’s well known song “I shot the sheriff” could be used at trial if he had been prosecuted for murder of a law enforcement officer.   And Johnny Cash’s famous lyric “I shot a man in Reno just to watch him die,” could be introduced at trial if he had been prosecuted for first degree murder, presumably even if not in Reno, to show his bad intent.

In State v. Skinner, the New Jersey Supreme Court reversed the introduction of rap lyrics authored by the defendant before the alleged crime.  The court interpreted the commonplace evidentiary rule that requires a weighing of the “prejudicial impact” of evidence against its “probative value.”   The lyrics were deemed prejudicial because they were violent and obscene.  But the more important query was whether they were at all “probative”?  Which brought the court to Bob Marley, as well as to Edgar Allen Poe:

The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.

The opinion is decidedly grounded in the rules of evidence that govern criminal (and civil) trials rather than the First Amendment, but First Amendment protections for free expression cast a long shadow here.  The New Jersey Supreme Court’s unanimous opinion contains a lengthy passage describing the First Amendment discussion in the ALCU’s amicus brief, although the court never explicitly returns to the First Amendment in its own analysis.  The “nexus” language is key.  To the extent that expression details the accused crime, it is more likely to be admissible.  But the New Jersey Supreme Court makes clear that a song about how one shot the sheriff (and not the deputy) isn’t likely to be admitted in a criminal trial to prove your intent to commit murder.

[image via; more discussion on the Constitutional Law Professors Blog here].

Justice Antonin Scalia via

Dissenting from the denial of certiorari review in Elmbrook School District v. Doe, a case presenting the question of whether a school can hold its graduation in a church building, Justice Scalia had this to say:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

Scalia’s view threatens to reduce the Establishment Clause of the First Amendment to a matter of personal taste.  The Court’s denial of the petition for certiorari, however, lets stand the Third Circuit decision that held the graduation ceremony on a church did violate the Establishment Clause of the First Amendment.

There’s more about the case on the Constitutional Law Professors blog here.