The Magazine

A Victory for Free Speech

Jun 30, 2014, Vol. 19, No. 40 • By TERRY EASTLAND
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The other day a unanimous Supreme Court ruled that a First Amendment challenge to an Ohio law should be heard in the lower courts. While the decision may have seemed a minor one, it represents an important advance for freedom of speech.

SBA List

The question that the Court answered in the affirmative, with Justice Clarence Thomas writing, was whether Susan B. Anthony List, a pro-life advocacy organization, has standing to challenge an Ohio statute that prohibits false statements made during a political campaign.

Ohio is one of 16 states that have false statement statutes. Most of them date from the post-Watergate era and seek to promote an ostensibly more virtuous politics. The laws vary in their details, but they all involve government in passing judgment on what are essentially statements of opinion. That is what makes them unconstitutional, since under the First Amendment, the people, and not the government, have the authority to decide which political statements are true or false or somewhere in between.

The Ohio law makes it a crime for anyone to make false statements about the voting record of a candidate or incumbent officeholder and for anyone to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate” that the speaker knows is false or has made with “reckless disregard of whether it was false or not.” Note that the law applies even to campaign falsities composed by bloggers.

In 2010, SBA, doing as advocacy groups do in an election year, targeted members of Congress who had supported “a health care bill that includes taxpayer-funded abortion”—Obamacare. One was Rep. Steve Driehaus, the Democrat who then represented the state’s First Congression-al District, most of which is in Cincinnati.

SBA sought to rent billboard space in the district to “educate voters” about his position. “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion” was to be the message. The company that owned the space refused to display it after a lawyer for Driehaus threatened legal action. Aware that under the false statement statute “any person” may file a complaint with the Ohio Elections Commission alleging a violation of the law, Driehaus did so—on October 4, 2010, 29 days before the general election.

Driehaus’s complaint—that SBA had falsely stated his voting record—meant that SBA would be subjected to a process established by the statute in which government officials would decide whether the organization had indeed falsely spoken. Conducting an “expedited review” as the law provides, 3 members of the commission (there are 10 in all) decided on October 14 that there was “probable cause” to believe that the alleged violation had occurred.

SBA now risked criminal prosecution and punishment if the full commission, which would act next, were to decide there was “clear and convincing evidence” that a violation had occurred. Such a judgment must, under the law, be referred to “the relevant county prosecutor,” with fines, prison, and disfranchisement awaiting those charged and found guilty.

SBA didn’t wait around to find out what the full commission might do. On October 18, before the commission’s scheduled hearing, SBA filed its challenge to the constitutionality of the false statement statute. After the election, Driehaus, having lost his bid to keep his seat, decided to drop his complaint. But SBA stayed with its lawsuit, contending that its speech had been inhibited, that it intended to send the same message in future elections, and that it expected to see its constitutional rights again “being chilled and burdened,” because anyone can hale it before the commission, “forcing it to expend time and resources defending itself.”

The district court dismissed SBA’s lawsuit, as well as a similar one brought by the Coalition Opposed to Additional Spending and Taxes, with which it had been consolidated. The cases fared no better on appeal, in the Sixth Circuit.

At issue was whether the two parties had presented a sufficiently concrete injury that would confer on them standing to have their case heard. SBA and COAST argued that the threat of enforcement of the false statement statute amounted to such an injury, and the Supreme Court agreed, concluding that “the burdensome commission proceedings” together with “threat of criminal prosecution” suffices to create an injury that entitles the parties to have their case heard.

A Supreme Court decision sustaining the Sixth Circuit would have effectively insulated Ohio’s false statement statute—as well as those in other states—from constitutional challenge. It would have ensured the continued involvement of government in decisions that the First Amendment leaves to the people.

As matters stand, SBA v. Driehaus has been sent back to the lower courts for review of the constitutional issue it raises. And who knows? SBA v. Driehaus might someday return to the Supreme Court. If not, let’s hope that the justices take a similar case. It’s time for the Court to affirm the First Amendment by taking government out of the business of political fact-checking and removing the threat of prosecution against speakers who dissent from its views of political truth.

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