U.S. Supreme Court

Ohio's law banning political lies may be challenged before enforcement, SCOTUS says


Two conservative political groups have standing to challenge an Ohio law banning political lies, the U.S. Supreme Court has ruled.

Justice Clarence Thomas wrote the unanimous opinion (PDF) finding that the Susan B. Anthony List and COAST had alleged a credible threat that Ohio would seek to enforce its law against them. As a result, they had suffered an Article III injury in fact and had standing to sue.

The Ohio law bars statements about candidates during political campaigns that are knowingly false or made with reckless disregard for the truth. The Ohio Elections Commission can issue reprimands or refer cases for prosecution if it finds a violation of the law by clear and convincing evidence. Violators face up to six months in prison and a $5,000 fine for a first offense, and mandatory loss of the right to vote for a second offense.

The Susan B. Anthony List and COAST equate a vote for the Obama administration’s health-care law with a vote for taxpayer-funded abortion. The groups wanted to run billboards and emails targeting then-Congressman Steven Driehaus for his vote. The billboard was to read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”

But the billboard company refused the ad by the Susan B. Anthony list after Driehaus’ legal counsel threatened legal action. Driehaus filed a complaint against the Susan B. Anthony List with the elections commission, and a panel found probable cause that the group violated the statute. Driehaus withdrew his complaint after he lost the election in 2010. COAST had planned to send a mass email making a similar claim against Driehaus, but it refrained because of the legal dispute.

Both groups said they intended to make similar statements about candidates in the future.

It does not make a difference that the Susan B. Anthony list maintained its statements were in fact true and did not violate the law, Thomas said. “There is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations,” Thomas said. “Nothing in this court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.”

The case is Susan B. Anthony List v. Driehaus.

Prior coverage:

ABAJournal.com: ” ‘Truthiness’ is vital to political speech, according to humorist’s amicus brief”

ABAJournal.com: “Scalia uses ‘Ministry of Truth’ example from Orwell book as SCOTUS mulls Ohio law on political lies”

ABAJournal.com: “SCOTUS to consider right to challenge Ohio’s law barring political lies”

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