The U.S. Supreme Court appeared poised on Tuesday to give the green light to a First Amendment lawsuit aimed at overturning a censorious state law.
At issue in Tuesday's oral arguments in Susan B. Anthony List v. Driehaus was whether the anti-abortion group Susan B. Anthony List (SBA List) may proceed in federal court with a constitutional challenge to an Ohio law that criminalizes "false" political speech. Under the terms of that law, "any person" may file a complaint about "false" speech with the Ohio Elections Commission, thereby triggering official proceedings where the alleged wrongdoer may be forced by the state to produce witnesses and documents. "In other words," remarked Justice Anthony Kennedy during the oral arguments, "you have tens of thousands of private attorney generals" able to haul their political opponents before a state tribunal. Kennedy did not appear to mean that as a compliment.
In 2010, SBA List was subjected to precisely that sort of ordeal. After Democratic Rep. Steve Driehaus complained about the group's attack on his record, a three-member panel of the Ohio Elections Commission, with two Democrats in the majority and one Republican in dissent, determined there was "probable cause" to believe SBA List would be found in violation of the speech law. Meanwhile, the congressional election—where Driehaus was a candidate—came and went. In effect, SBA List had been successfully prevented from speaking out against Driehaus' candidacy.
The question now before the Supreme Court is whether that set of events is sufficient to give the conservative group the requisite "standing" needed to challenge the Ohio law on free speech grounds. Judging by what I observed during Tuesday's oral arguments, a majority of the justices seemed ready to give the Susan B. Anthony List its day in court.
"Don't you think," asked Justice Kennedy to Ohio State Solicitor Eric Murphy, "there's a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who's involved in your association, what research you made, et cetera?"
Justice Antonin Scalia struck a similar note. "You are forcing them to go through this procedure in the midst of an election campaign," he complained to Murphy. Several minutes later, Scalia launched another attack, comparing the Ohio Elections Commission to the notorious "Ministry of Truth" from George Orwell's 1984.
But perhaps the most damaging argument raised against the state came courtesy of Justice Stephen Breyer. "There are things I want to say politically," Breyer began, "and if I say them, there's a serious risk that I will be had up before a commission and could be fined. What's the harm? I can't speak. That's the harm."
That statement captured the entire case against Ohio in a nutshell. Assuming Breyer and his colleagues hold to that view, the Buckeye State will soon be forced to justifiy its actions against the full weight of the First Amendment.
A decision in Susan B. Anthony List v. Driehaus is expected by June.