"Truthiness, Insinuations, And Allegations Are Protected By The First Amendment"

On April 22 (Earth Day and the birth of V. I. Lenin and death of Richard Nixon, probably just a coincidence), the U.S. Supreme Court will hear oral argument in Susan B. Anthony List v. Driehaus, a constitutional challenge to an Ohio law that criminalizes false statement during an election campaign about the voting record of a candidate or public official, and the dissemination of any false statement about a candidate, either knowing it is false or with reckless disregard for whether it is true, with the goal of electing or defeating the candidate. Or, to put it more drily and precisely, the Supreme Court will consider:

(1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree.

As reported in the New York Times, which makes it official, to aid the Court the Cato Institute and humorist P.J. O'Rourke ("America's leading political satirist"¹ and an H.L. Mencken Research Fellow at the Cato Institute) have submitted an amicus brief in support of the constitutionality of the law. Its main assertions are:

• Truthiness, Insinuations, And Allegations Are A Vital Part Of Political Speech
• Truthiness, Insinuations, And Allegations Are Protected By The First Amendment
• The Public Interest In Political Honesty Is Best Served By Pundits And Satirists

In a Daily Beast essay, O'Rourke has disavowed authorship of the brief:

Cato did not ask me to write their brief for the same reason that you do not ask me to perform your appendectomy. … I was asked to read it and give it my endorsement because I am an expert on being run out of Ohio. Ask my mother.

¹ Example of truthiness?