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.