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.