The U.S. Supreme Court appeared poised on Tuesday to give the
green light to a First Amendment lawsuit aimed at overturning a
censorious state law.
At issue in Tuesday’s oral arguments in Susan B. Anthony
List v. Driehaus was whether the anti-abortion group Susan B.
Anthony List (SBA List) may proceed in federal court with a
constitutional challenge to an Ohio law that criminalizes “false”
political speech. Under the terms of that law, “any person” may
file a complaint about “false” speech with the Ohio Elections
Commission, thereby triggering official proceedings where the
alleged wrongdoer may be forced by the state to produce witnesses
and documents. “In other words,” remarked Justice Anthony Kennedy
during the oral arguments, “you have tens of thousands of private
attorney generals” able to haul their political opponents before a
state tribunal. Kennedy did not appear to mean that as a
compliment.
In 2010, SBA List was subjected to precisely that sort of
ordeal. After Democratic Rep. Steve Driehaus
complained about the group’s attack on his record, a
three-member panel of the Ohio Elections Commission, with two
Democrats in the majority and one Republican in dissent, determined
there was “probable cause” to believe SBA List would be found in
violation of the speech law. Meanwhile, the congressional election
where Driehaus was a candidate came and went. In effect, SBA List
had been successfully prevented from speaking out against Driehaus’
candidacy.
The question now before the Supreme Court is whether that set of
events is sufficient to give the conservative group the requisite
“standing” needed to challenge the Ohio law on free speech grounds.
Judging by what I observed during Tuesday’s oral arguments, a
majority of the justices seemed ready to give the Susan B. Anthony
List its day in court.
“Don’t you think,” asked Justice Kennedy to Ohio State Solicitor
Eric Murphy, “there’s a serious First Amendment concern with a
state law that requires you to come before a commission to justify
what you are going to say and which gives the commission discovery
power to find out who’s involved in your association, what research
you made, et cetera?”
Justice Antonin Scalia struck a similar note. “You are forcing
them to go through this procedure in the midst of an election
campaign,” he complained to Murphy. Several minutes later, Scalia
launched another attack, comparing the Ohio Elections Commission to
the notorious “Ministry of Truth” from George Orwell’s
1984.
But perhaps the most damaging argument raised against the state
came courtesy of Justice Stephen Breyer. “There are things I want
to say politically,” Breyer began, “and if I say them, there’s a
serious risk that I will be had up before a commission and could be
fined. What’s the harm? I can’t speak. That’s the harm.”
That statement captured the entire case against Ohio in a
nutshell. Assuming Breyer and his colleagues hold to that view, the
Buckeye State will soon be forced to justifiy its actions agains
the full weight of the First Amendment.
A decision in Susan B. Anthony List v. Driehaus is
expected by June.
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