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Supreme Court Still Wrestling with Political Speech

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The U.S. Supreme Court issued a ruling Thursday that continues an earnest legal debate over the freedom of speech in political campaigns.

The case, Susan B. Anthony List v. Driehaus, originated in Ohio, one of 17 states with laws against false campaign speech. During the 2010 midterm election, the anti-abortion group Susan B. Anthony List (SBA) intended to put up a billboard criticizing then-Congressman Steve Driehaus (D-Ohio) for his vote on the Affordable Care Act (ACA). The billboard was to read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”

“In fact,” National Public Radio (NPR) reports, “Driehaus and other anti-abortion Democrats supported the health care bill only after President Obama agreed to issue an executive order that specified insurance plans in the health care exchanges would not use tax dollars for abortion, except in cases of rape, incest or when the life of the woman would be endangered.”

Ohio’s false campaign speech law reads in part,

No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign do any of the following: Make a false statement concerning the voting record of a candidate or public official [or] Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.

Ohio has a similar restriction relating to ballot propositions.

Driehaus threatened SBA with legal action, dissuading the organization from placing its billboard. Then, Driehaus filed a complaint with the Ohio Elections Commission, which was eventually withdrawn when he did not win reelection.

SBA filed suit, alleging that its speech had been “chilled” and that its future speech faced a similar fate. SBA’s suit was consolidated with another by the Coalition Opposed to Additional Spending and Taxes (COAST), which also sought to criticize Driehaus for his ACA vote.

Lower courts dismissed the suit, noting that, since Driehaus’ complaint had been withdrawn, the elections commission had never ruled against SBA and therefore created no injury. Further, SBA did not establish an “imminent threat of future prosecution” and claimed it always intended to tell the truth in future campaign speech. In the absence of an injury, the lower courts ruled the suit did not have standing.

In the unanimous Supreme Court decision, authored by Justice Clarence Thomas and overruling the lower courts, the Court cited Steffel v. Thompson (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”) and Babbitt v. Farm Workers, writing that “a plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'”

The Court said SBA clearly intended to engage in similar statements in the future, statements that are “arguably. . . proscribed by [the] statute,” and that SBA had been the subject of other complaints to the elections commission. Therefore, the claim of an imminent threat of prosecution under Ohio’s law was valid and the suit had standing.

It is important to note that the Court did not rule on the law itself, merely whether the case could be considered by lower courts. If pursued by SBA and COAST, the case could make its way back up to the Supreme Court, which would then have the opportunity to rule on the law’s constitutionality.

While Alaska does not have a false campaign speech law with the breadth of Ohio’s, the state does have a law against false statements during telephone polling and “calls to convince.” The language is similar to Ohio:

A candidate who is damaged as the result of a false statement about the candidate made with knowledge that it was false, or with reckless disregard for whether it was false or not, made as part of a telephone poll or an organized series of calls, and made with the intent to convince potential voters concerning the outcome of an election in which the candidate is running may recover damages in an action in superior court under this section against the individual who made the telephone call, the individual’s employer, and the person who contracted for or authorized the poll or calls to convince.

It is highly unlikely that Alaska politicians will seek to expand this law while courts are considering that of Ohio. And the fate of Ohio’s law is now very much in question.

Oliver Wendell Holmes famously ruled in Schenck v. United States that speech, though protected by the First Amendment, has limits. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic, ” Holmes wrote. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

The word “falsely” would seem to support the Ohio law. However, the highly polished nature of today’s political debates, reminiscent of corporate public relations campaigns, may not present a “clear and present danger,” even when the truth is bent. It is likely that if the Ohio case made its way to the conservative-leaning Supreme Court, Chief Justice John Roberts and Company would rule that the determination of political truth is best left to private enterprises like Politifact, rather than governments.