08/02/2013 08:41 am ET Updated Oct 02, 2013

Obamacare Wars: When Does Political Speech Become Commercial Fraud?

Republicans are about to embark upon a summer of lies about the Patient Protection and Affordable Care Act, a.k.a. Obamacare. While the Act was being debated, and prior to certain sections being implemented, lies such as 'death panels' were political speech and thus protected against civil causes of action. The debate, if one can call it that, was designed to sway voters.

Now that the Act is being implemented, however, voters have also become consumers and Obamacare is now a commercial product. Lies about the Act's impact on economic growth, jobs and the budget clearly remain protected political speech. Such lies may turn a voter against the Act, but they are not likely to affect a consumer from choosing to take advantage of Obamacare's benefits.

But, what about other lies, such as the non-existent "death panels" or "government intruding upon the doctor-patient relationship" or "armies of IRS agents monitoring your health care"? These discourage people themselves, as consumers, from getting health care insurance and businesses from taking the tax credits and other benefits that could help their bottom lines while providing health care to their employees.

The Koch boys have launched lying ads designed to scare women that they will not be able to choose their own physician under Obamacare. This has already impacted real people, not just the fictional characters in the ads.

As Obamacare is implemented, the Koch brothers may be crossing that line from political lies to consumer fraud.

Suppose, for example, you are the parent of a child with a genetic illness, like Rick Santorum and Sarah Palin. Palin asserted the law included "death panels" before which she would have to argue for her baby's worth in order to get health care coverage. Rick Santorum said that his child would not get health care under Obamacare. Investors' Business Daily asserted that if the renowned astrophysicist Stephen Hawking, who has suffered from Lou Gehrig's Disease for 40+ years, lived in England, he would not have been kept alive -- except that Hawking is a British citizen, a professor at Cambridge University, and is, in fact, covered under their system. [Note: It takes lies about Obamacare to write "Sarah Palin" and "Stephen Hawking" in the same paragraph!]

Now suppose that you are a parent of a child with a genetic illness. You want to get health insurance. But, you have seen the lies in these ads that you cannot choose your own doctor and that rates will go up. Suppose, on the basis of these lies, you do not take advantage of the insurance offered on the Obamacare exchanges, but instead opt for a much more expensive plan? Or, no plan at all?

Has this parent not been the victim of consumer fraud, and thus the perpetrators liable for her damages?