Supreme Court

Federal Judge Strikes Down Ohio 'False' Speech Law, Rules for Susan B. Anthony List


In its unanimous June 2014 ruling in Susan B. Anthony List v. Driehaus, the U.S. Supreme Court held that the anti-abortion group Susan B. Anthony List had every right to mount a First Amendment challenge to an Ohio law which criminalizes "false" political speech. In 2010, SBA List had been hauled before the Ohio Elections Commission on charges of violating that law when it attempted to run billboard ads opposing the reelection of Rep. Steve Driehaus (D). According to the U.S. Court of Appeals for the 6th Circuit, however, SBA List did not have standing to file suit because it could not demonstrate "an imminent threat of future prosecution."

In its 9-0 decision, the Supreme Court rejected the 6th Circuit's specious reasoning. "The threat of future enforcement of the false statement statute is substantial," declared the majority opinion of Justice Clarence Thomas. Indeed, Thomas observed, "the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from 'imaginary or speculative.'"

In response, Susan B. Anthony List promptly moved forward with its First Amendment case against the state. Yesterday the group scored its first victory when the U.S. District Court for the Southern District of Ohio, Western Division, declared the state law to be unconstitutional. Here's how that court framed its decision:

Lies have no place in the political arena and serve no purpose other than to undermine the integrity of the democratic process.  The problem is that, at times, there is no clear way to determine whether a political statement is a lie or the truth.  What is certain, however, is that we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth—for fear that the Government might persecute those who criticize it.  Instead, in a democracy, the voters should decide.  And thus today the Court must decide whether Ohio's political false-statements laws are the least restrictive means of ensuring fair elections.  The short answer is no.

The short answer is correct. In this case, the Ohio Elections Commission, by a party-line vote, said there was "probable cause" to believe that SBA List was going to lie. The evidence? SBA List wanted to run billboard ads that charged Rep. Driehaus with supporting "tax-payer funded abortion" by voting for the Patient Protection and Affordable Care Act. But is this even a lie? Not exactly, as I noted in a previous column:

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.

In short, the state law granted political appointees the power to suppress political speech—a clear First Amendment violation. The district court got it right.

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  1. See AM links:
    Sevo|9.12.14 @ 10:09AM|#
    Judge says it’s *ALL* BS:

    “Federal judge strikes down Ohio’s campaign statements law”
    “In a ruling that could have reverberations around the country, a federal judge on Thursday struck down an Ohio law that bars individuals from knowingly making false statements about political candidates.”…..?track=rss
    And since we’re scooping H&R: ‘Venezuela too miserable for Cuban med workers’

    “Poor working conditions in Venezuela send Cuban doctors to U.S.”
    “Cuba, which prides itself on a comprehensive health care system and has long exported doctors and nurses to friendly countries, maintains an estimated 10,000 health care providers in Venezuela. The medical outreach program is intended as partial payment for 100,000 barrels of oil that President Nicolas Maduro’s government ships to the Raul Castro administration each day.”…..749286.php

    I think that has more than a whiff of slavery…

  2. Does a lower court suffer anything from having its decisions overturned? Embarrassment even?

    1. Bench promotion when their Team assumes executive power?

    2. No, there is no penalty for having your decisions overturned. Remember, federal judges* are appointed for life, so impeachment by congress is the only thing. In extreme cases a higher judge can void the orders of a lower judge but they don’t like to do that.

      (*) Most of them. There are some exceptions but those judges (or “judges”) don’t hear this type of case.

      1. Fuck, I want to be a congressman just so I can start firing fucking judges.

      2. I’m not saying penalty. Just, do does the court-going world look at them as diminished or in any way differently? Like, these guys are bozos.

  3. Two decisions striking down First Amendment violations in the same week? Progs have a sad.

    1. But progs are the keepers of the first amendment.

  4. Does this mean people are free to believe in religions that aren’t true, too?

    Or are they not willing to stretch the First Amendment that far, yet?

    1. No, your only two choices are Jesus Christ, Our Lord And Savior or Government.

      1. But you can see how confusing it gets!

        The First Amendment only protects political speech if it’s true, isn’t paid for by corporations, etc….

        And, yet, we’re just gonna let people believe whatever they want to believe?!

        How are people supposed to know which religion to believe in if even the false ones get to proclaim whatever they want?

        Some of these people are rednecks and racists, too, so, obviously, we can’t just let people make these decisions on their own!

        1. Well, if some people are racists, obviously we just need to take decisions away from all people. Because Racist! And we can’t live in a world where racist people exist.

          1. Finally somebody around here that knows what he’s talking about!

  5. I’m appalled that a state legislature would have passed such an obviously unconstitutional law in the first place. Does Ohio elect blockheads? Do you have to have a certain political venality to get elected there?

    1. “I’m appalled that a state legislature would have passed such an obviously unconstitutional law in the first place.”


      I think it’s really cute that there are people out there who still think the Constitution matters to politicians.

      1. Yeah, I was too busy laughing to respond. Thanks, Ken.

    2. Spineless, pandering legislators often pass legislation they know to be patently illegal. It let’s them claim that they “did something” and set the courts up to take the heat. Hooray for checks and balances.

      1. It let’s them claim that they “did something” and set the courts up to take the heat. Hooray for checks and balances.

        Too bad it doesn’t work… It’s kinda like nagging your wife for a blowjob. Sure, she might say yes the first 10 times, but eventually you’ll wear her down.

    3. Does Ohio elect blockheads?


      1. Does any jurisdiction not?

  6. The court should have focused on the R.A.V. issue – that is, the statute provides a special procedure for targeting certain alleged lies, *so long as those lies are about a political candidate,* but provides no similar protection for an ordinary citizen who gets lied about by a politician.

    If a politician says that ordinary citizen X is corrupting the electoral process with Big Money, or doesn’t have a valid license for his profession, etc., then citizen X has no right, under the Ohio law, to take the issue before a special administrative panel, which may, by a partisan vote, demand that the politician obey extensive discovery requests and defend his accusations. No, the regular, ordinary citizen is left to whatever defamation remedies the courts may have.

    When politicians create special procedures to harass the normals for thei speech, but exempt themselves from such procedures, then there is no way that can be constitutional.

    1. for *their* speech.

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