I have now had the chance to review the transcript in today’s Susan B. Anthony case. I’m going to stick with my pre-argument prediction: This is likely to be a unanimous decision against the state of Ohio. There may be a few Justices (Scalia, Alito, Thomas) who will want to reach the merits of the constitutionality of the false speech scheme. I imagine the other Justices won’t go that far because it is not necessary to reach that question right now. But a majority opinion could well cast doubt on the constitutionality of a false speech law, at least one that has the government itself engage in a “ministry of truth” function. (My analysis of that in A Constitutional Right to Lie in Campaigns and Elections?)
Interesting too was the contrast with defamation laws, which could well remain constitutional. Consider what the Chief Justice and Justice Scalia said:
CHIEF JUSTICE ROBERTS: Well, no, but a defamation action, people sue everybody all the time. No one’s going to take that seriously. In fact, it’s probably going to redound to the benefit of SBA and COAST to say the congressman is, you know, bringing a defamation action. It highlights it, but it’s another thing to have the State involved making a determination that there’s probable cause that you lied.
JUSTICE SCALIA: The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it. That’s not that’s not the law.