By John Malcolm
April 25, 2014
The Supreme Court on Wednesday heard oral argument in a case involving a constitutional challenge to an Ohio law that makes it a crime to make a false statement about a candidate during a political campaign.
During the 2010 elections, Susan B. Anthony List, a national pro-life advocacy group, criticized members of Congress, including Rep. Steven Driehaus (D–Ohio), who voted for the Affordable Care Act. When SBA List sought to put up billboards in Driehaus’ district that read “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion”—a reference to Driehaus’ vote for Obamacare—Driehaus filed a complaint with the Ohio Elections Commission claiming that SBA List violated the law.
Although SBA List maintained (and still maintains) that its statement was truthful, a panel of the commission found “probable cause” to believe that the law had been violated, which prompted SBA List and another organization to file a lawsuit in federal court alleging that the Ohio law violates the First Amendment. Both organizations stated that they wanted to engage in similar speech in the future, but that they felt chilled from doing so because of the law’s existence; the fact that a panel of the commission had found probable cause to believe that the law had been violated; and that such a finding could result in a future referral to the authorities for criminal prosecution.
Driehaus withdrew his complaint after losing in the general election, and the trial court subsequently dismissed SBA List’s claims on the grounds that they were not “ripe” for consideration because the organization did not face a credible and imminent threat of prosecution under the law. The appellate court agreed. After today’s oral argument, it seems likely that the Supreme Court will reverse the lower courts and that SBA List will get its day in court to challenge the constitutionality of this overreaching law.
As attorney Mike Carvin pointed out to the Court today on behalf of SBA List, political speech in the course of an election campaign is at the core of the First Amendment, and such speech has “a short shelf life” in that nobody listens to it more than 60 days before an election and nobody cares about it once the election is done. Besides the possibility of criminal prosecution, the mere act of being called before a government-designated “Ministry of Truth” to defend yourself during the critical run-up to an election is burdensome and could lead to self-censorship. Indeed, under the Ohio law, “any person” can file a complaint with the commission, and they often do.
The Court heard today that over the last few years, over 500 complaints have been filed by candidates and their supporters, each complainant no doubt hoping that the commission would publicly announce that they had found “probable cause” that the offending statement was false, which they could then tout in the hopes of influencing the outcome of the election.
Two terms ago, the Supreme Court held in United States v. Alvarez that even false statements are entitled to First Amendment protection. As the Court recognized, laws proscribing generalized false speech cast “a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of freedom.” Even the dissenters in that case recognized that, when it comes to “matters of public concern”—and what could be a matter of greater public concern than the election of our representatives—laws such as the one in Ohio that outlaw false statements create the potential for abuse that is “simply too great” for the First Amendment to bear.
John Malcolm, Director of Legal and Judicial Studies, The Heritage Foundation, heritage.org.