Federal Judge Strikes Down Ohio ‘False’ Speech Law, Rules for Susan B. Anthony List

In its unanimous June 2014 ruling in Susan B.
Anthony List v. Driehaus, the U.S. Supreme Court held that
the anti-abortion group Susan B. Anthony List had every right to
mount a First Amendment challenge to an Ohio law which criminalizes
“false” political speech. In 2010, SBA List had been hauled before
the Ohio Elections Commission on charges of violating that law when
it attempted to run billboard ads opposing the reelection of Rep.
Steve Driehaus (D). According to the U.S. Court of Appeals for the
6th Circuit, however, SBA List did not have standing to file suit
because it could not demonstrate “an imminent threat of
future prosecution.”

In its 9-0 decision, the Supreme Court rejected the 6th
Circuit’s specious reasoning. “The threat of future enforcement of
the false statement statute is substantial,” declared the majority
opinion of Justice Clarence Thomas. Indeed, Thomas observed, “the
specter of enforcement is so substantial that the owner of the
billboard refused to display SBA’s message after receiving a letter
threatening Commission proceedings. On these facts, the prospect of
future enforcement is far from ‘imaginary or speculative.'”

In response, Susan B. Anthony List promptly moved forward with
its First Amendment case against the state. Yesterday the group
scored its first victory when the U.S. District Court for the
Southern District of Ohio, Western Division, declared the state law

to be unconstitutional. Here’s how that court framed its
decision:

Lies have no place in the political arena and serve no purpose
other than to undermine the integrity of the democratic
process.  The problem is that, at times, there is no clear way
to determine whether a political statement is a lie or the
truth.  What is certain, however, is that we do not want the
Government (i.e., the Ohio Elections Commission) deciding what is
political truth — for fear that the Government might persecute
those who criticize it.  Instead, in a democracy, the voters
should decide.  And thus today the Court must decide whether
Ohio’s political false-statements laws are the least restrictive
means of ensuring fair elections.  The short answer is no.

The short answer is correct. In this case, the Ohio Elections
Commission, by a party-line vote, said there was “probable cause”
to believe that SBA List was going to lie. The evidence? SBA List
wanted to run billboard ads that charged Rep. Driehaus with
supporting “tax-payer funded abortion” by voting for the Patient
Protection and Affordable Care Act. But is this even a lie? Not
exactly, as I
noted in a previous column:

The content of that proposed billboard message is certainly
debatable. The SBA List argues that while the health care law
purports to segregate insurance payments for abortion from other
federal funding, “the segregation rule is a mere accounting
gimmick, because money is obviously fungible; federal funds are
still being used to help buy abortion-inclusive coverage.” As the
old saying goes, reasonable minds may differ on whether or not that
counts as a persuasive reading of the health care law.

But Rep. Driehaus did not exhibit the signs of a reasonable
mind. He objected to the conservative group’s characterization of
his actions and—instead of taking his case straight the
voters—filed a complaint with the Ohio Elections Commission (OEC),
charging the Susan B. Anthony List with attempting to spread
political lies. A three-member panel of the OEC, with two Democrats
in the majority and one Republican in dissent, agreed there was
“probable cause” to believe the billboard ads might violate the
law. In the meantime, the billboard company, also facing the threat
of legal action, refused to run the ads. With the election now less
than a month away, the political speech of the Susan B. Anthony
List was effectively suppressed.

In short, the state law granted political appointees the power
to suppress political speech—a clear First Amendment violation. The
district court got it right.