Late Monday afternoon,? the Supreme Court cleared the way for an anti-abortion group to challenge an Ohio law that makes false statements against election candidates a criminal offense.
Back in 2010, the Susan B. Anthony List, an anti-abortion group trading on the premise that the noted suffragette was an ardent abortion opponent (a contention that has been challenged by scholars) wanted to run a billboard claiming that when then-Congressman Steve Driehaus (D-Oh.) voted for Obamacare, the Cincinnati Democrat was effectively voting for taxpayer-funded abortion. That claim was blatantly false. Not only did the Affordable Care Act leave the Hyde Amendment’s ban on federal funding of abortion intact, but it also includes provisions that allow states to ban abortion coverage from plans sold on their health care exchanges. It also requires states that do allow abortion coverage to ensure that no federal money is used for abortion. However, when Driehaus–who was bounced from the House by his predecessor, Steve Chabot, after only one term–threatened legal action, the company that owned the billboards refused to run the ad.
On the face of it, Driehaus could have taken SBA to the cleaners for defamation. But he didn’t go that route. Instead, he filed a complaint with the Ohio Election Commission alleging that SBA had violated an Ohio law making it a misdemeanor to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not.” The election commission found that there was “probable cause” that SBA had broken the law, which would have forced SBA to defend itself before the commission. Had the commission made a final ruling that SBA had broken the law, SBA could have faced criminal prosecution. However, Driehaus withdrew his complaint after losing his reelection bid. That didn’t stop SBA from filing suit in federal court, contending that the Ohio law violated the First Amendment. A district court found that SBA couldn’t sue because there was no pending prosecution–a ruling upheld by the Sixth Circuit Court of Appeals.
However, a unanimous Supreme Court disagreed. The Court’s opinion, written by Justice Clarence Thomas, outlined in the law could give a complainant a significant advantage “without ever having to prove the falsity of a statement.” It also found that this process could have a chilling effect on speakers who are actually telling the truth, since they face the prospect of having to devote significant time and resources to defending themselves. If the election commission were to find probable cause of a violation, voters could potentially view it as “a sanction by the State.”
While the Court didn’t look into the merits of the law, from my non-lawyer’s perspective this law is constitutionally dubious at best, especially considering that Driehaus wouldn’t have needed to resort to this law to hold SBA to account. No one wants to see people potentially thrown in jail for making false statements during a campaign. That’s something that may happen in places like Egypt or Russia, but it’s something that we should never tolerate here. Indeed, during oral arguments in April, at least two justices–Antonin Scalia and Stephen Breyer–hinted that they don’t think this law passes First Amendment muster. From the looks of it, it’s only a matter of time before this law is struck down.
Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
