Ohio Silences Political Speech, Gets Hauled Before Supreme Court

The right to speak freely about politics is one of the core protections secured by the First Amendment. It’s a guarantee that applies to all sorts of speech, from genteel discussion to the hurling of invective.

Or at least that's true in most places. The state of Ohio takes a dimmer view of this basic constitutional right. According to Ohio law, it is a misdemeanor offense to make "false" statements about political candidates. Who gets to decide what counts as false? Who else? A state agency staffed by political appointees endowed with the power to selectively silence political speech.

That's the unfortunate legal regime that produced the case of Susan B. Anthony List v. Driehaus, which the U.S. Supreme Court will hear later this month. The case originated in the run-up to the 2010 election when the Susan B. Anthony List (SBA List), an anti-abortion group, announced its intention to oppose the re-election campaign of Rep. Steve Driehaus (D-Ohio) by, among other things, purchasing billboard ads claiming Driehaus supported “tax-payer funded abortion” by voting for the Patient Protection and Affordable Care Act.

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.

As the SBA List awaited further action on Driehaus' complaint by state officials, it filed a federal First Amendment suit against the Ohio law. Not only had it already suffered one violation of its free speech rights, the SBA List argued; it faced the threat of future sanctions because the group fully intended to engage in similar speech against similar candidates. The Ohio law violated the First Amendment, the group said, and needed to go.

But the U.S. Court of Appeals for the 6th Circuit thought otherwise, ruling that the Susan B. Anthony List lacked the requisite legal standing to even challenge the state law in the first place. Why? Because "the prior harms to which SBA List points—the billboard rejection and the probable-cause hearing—do not help it show an imminent threat of future prosecution." In other words, even though SBA List had been hauled before state officials once, the 6th Circuit saw no reason to expect the same thing to happen again anytime soon. "No sword of Damocles dangles over SBA List to justify its fears," the court declared.

To say the least, that judgment is at odds with reality. The Ohio law has a demonstrable record of chilling political speech, and there is every reason to think history will go on repeating itself. In fact, according to the law, "any person" may file a complaint about "false" political speech with state authorities, and the alleged wrongdoer may then be required by the OEC to produce witnesses and documents in response. That’s a costly and time-consuming project for any political group that’s also trying to get its message out before an election. Indeed, pro-choice activists run the same risk of harassment and speech suppression at the hands of a Republican-controlled Ohio Elections Commission. This is a rotten law, ripe for abuse.

The Susan B. Anthony List deserves its day in court. To hold otherwise is an affront to both the First Amendment and the principles of judicial review. The 6th Circuit should be overruled.

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  • Paul.||

    I'm not willing to judge this law yet.

    I'm thinking of a way we could apply this at the federal level, and have any politician thrown into prison whenever they spew a lie. And I'm trying to think of a downside to that.

  • FreeToFear||

    It's usually the "Lie according to who?" part

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  • Boogens||

    Yes, this is why most people consider themselves honest. Because they always tell the truth. The truth according to them.

  • R C Dean||

    I'm not willing to judge this law yet.

    I am. Its a frickin' criminal offense. For speech. Not for any criminal harm that the speech might have caused (such as fraud) or any crime that the speech was part of (such as conspiracy), but simply for the speech itself. To me, that's a crystal clear violation of the First Amendment.

  • Jazzizhep||

    It strains credulity for the 6th circuit to state that SBA didn't prove the possibility of future instances of abuse. They should just go ahead and proclaim the ruling in perpetuity as it seems unlikely we will have Minority Report oracles any time soon.

  • wwhorton||

    So, how is this not covered by libel/slander laws? Also, how in the shit does the 6th Circuit make that ruling? SBA announced an intent to create speech A; OEC prosecuted on the basis of speech A; SBA declares an intent to continue making speech A; OEC will almost certainly prosecute for the same offense. QED. Maybe I'm missing something due to lacking a law degree, but this seems pretty simple to me.

  • Ron||

    its to simple that the problem.

  • Ron||

    As in its so simple that there is only one way they could rule on it if they were to judge it but they are no better than the politicians they seek to protect, those who gave them their jobs. So instead of ruling it down like it should be they decide not to decide kind of Like Obama always voting present.

  • Jerryskids||

    The best part of this is that Driehaus himself is a pro-life Democrat who said he would not vote for Obamacare on the grounds that it didn't prohibit federal funding for abortion but after a backroom deal/trip to the woodshed/visit by Obama-Wan Kenobi went ahead and voted for the bill anyway. So the SBA billboard was only repeating what he himself had said - Obamacare funds abortions.

  • blcartwright||

    and if Obamacare didn't fund abortions there would be no Hobby Lobby case

  • John Galt||

    What's HIGH in the middle and has donut shaped sphincter on both ends?

  • Neoliberal Kochtopus||

    your mom.

  • John Galt||

    Her too. But the less obvious answer is Ohio.

  • Zebra||

    Is it just me, or does whomever wrote the opinion for the 6th Circuit have absolutely no concept of what the sword of Damocles refers to?

  • Neoliberal Kochtopus||

    The Sixth Circuit is becoming infamous for its terrible opinions. Last I had heard, the Sixth had experienced more summary reversals than the Ninth.

  • LibertarianX||

    The remedy for bad political speach isn't limits; it's more good speach. If the candidate thinks someone is falsifying his record, go out and correct it. Make your case instead of shutting them up - it makes you look guilty.

  • Sevo||

    Yeah, unless you can pull a gun on 'em, so much easier!
    And you can imagine how government-(taxpayer-)funded campaigns would work, right?

  • Mark22||

    Yes, just like the remedy for bad spelling is lots of good spelling.

  • John Galt||

    Mmm Georgia speaches.

  • ibcbet||

    They should just go ahead and proclaim the ruling in perpetuity as it seems unlikely we will have Minority Report oracles any time soon.

  • OneOut||

    When I saw the headline I thought that the law was intended to to make the politicians quit being dishonest.

    Silly me.

    It's just a law to make the citizens quit calling the politicians out on their lies.

  • Number 2||

    Strip beneath the surface of any political "reform" law and one always finds incumbent politicians protecting their incumbency.

  • MoreFreedom||

    "To say the least, that judgment is at odds with reality."

    Apparently those in government (in this case the court) are following Obama's lead, and spewing lies and pretending they aren't, even though it's obvious they are lies. And in essence saying "Screw you, we in government can do whatever we want, and if we say it's legal, it is."

    This isn't the rule of law, this is the rule of liars who are acting above the law, because with Obama as head of the executive branch and charged with enforcing the law, they know they won't be prosecuted. Obama is giving his fellow criminals in government, the professional courtesy criminals give each other.

  • ||

    "No sword of Damocles dangles over SBA List to justify its fears," the court declared.

    The court is correct here, since the SBA List has already been stabbed by it, it couldn't be The Sword of Damocles.

  • See.More||

  • ||

    "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. "

    Well, there is reason enough not to vote for the scumbag right there.

    I know, the thread is long dead, but it is early and the Brickbat isn't up yet.

  • sharonsj||

    It would be nice if we had investigative reporting in this country, so when a politician (or a TV or radio "news" host) lies, they would be called out for lying. But we don't.

    You make it sound like some unelected panel is going to decide what's false. That's crap. A falsehood is a lie and a lie can be proven by actual facts (something that many Americans unfortunately are prone to ignore).

    Our laws make it very difficult to prove libel or slander. So if the Ohio law can keep all of our rotten politicians from making up complete bullshit, then I'm for it.

  • blcartwright||

    read it again - this law is not aimed at politicians, but those who talk about politicians.

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