Supreme Court Rules In Favor Of Challenge To Ohio’s Criminalization of False Political Statements

supreme court220px-Clarence_ThomasThe Supreme Court has handed down a unanimous decision in Susan B. Anthony List v. Driehaus. This is an important case for the free speech community. It involved poorly written Ohio laws that SBA prohibit the use of false statements in campaign advertisements. It allows politicians to harass public interest groups and force them into costly administrative litigation. The case was brought by the pro-life organization, the Susan B. Anthony List (“SBA List”). Associate Justice Clarence Thomas wrote the opinion for the Court in finding that SBA had sufficient injury to bring the challenge, another victory this term for standing this term after years of disastrous rollbacks by the Court that have barred groups from the courts. The SBA case was one of those considered by my Supreme Court class and once again the class got the prediction right and also mirrored the Court on the merits. We voted 8-2 to reverse the Sixth Circuit. We then voted 9-1 in predicting a reversal.

220px-Susan_B_Anthony_c1855220px-Steve_Driehaus_official_photoThe original challenge under the dubious Ohio law was brought by former congressman Steven Driehaus. He was made a former congressman after being one of the handful of key votes to pass the Patient Protection and Affordable Care Act (ACA). He and others were successfully targets by ACA critics and was thrown out of office. Driehaus was challenged by Republican nominee and his predecessor, former U.S. Congressman Steve Chabot. While the White House promised to stick by all of those members who risked their seats by voting for the ACA, the DCCC pulled its financial support in the middle of the campaign when polls showed Driehaus trailing. He lost 52% to 45%. Driehaus filed a criminal complaint against the SBA in October 2012 over what he claimed to be false statements in a campaign advertisement. While he would later ask for that complaint to be dropped, he also sued the SBA for his “loss of livelihood” by “defaming” him by saying he supported taxpayer funded abortion due to his vote for the Affordable Care Act. The SBA won the case. Driehaus deserved to lose the case and, after his criminal complaint, he deserved to lose his office (as do those Ohio legislators who passed this law).

The key Ohio law prohibits certain “false statement[s]” “during the course of any campaign for nomination or election to public office or office of a political party.” Ohio Rev. Code Ann. §3517.21(B) (Lexis 2013). It is a crime for any person to“[m]ake a false statement concerning the voting record of a candidate or public official,” §3517.21(B)(9), or to “[p]ost,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.” §3517.21(B)(10). It is a poorly written and poorly conceived law that loosely used the language of New York Times v. Sullivan. It is also a politician’s dream. It can be used against critics and, whether successful or not, can drain the coffers and time of opponents. Not only was SBA forced to bear such costs but the advertising company that owned the billboard space refused to display SBA’s message after Driehaus’ counsel threatened legal action.

We previously discussed the Court ruling two terms ago that even false statements are protected by the First Amendment. Here is a prior column on the issue. Notably, even Justice Alito in dissent agreed that laws proscribing false statements about “matters of public concern” would create a “potential for abuse of power” “simply too great” for the First Amendment to tolerate. Id. at 2564 (Alito, J., dissenting).

Ohio tried to kill the case by denying the SBA any judicial review in a standing challenge. The District Court agreed and threw the case out of court as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds.

Thomas found a credible threat of enforcement of the Ohio law and sufficient standing. Thomas held:

Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case.See Babbitt, supra, at 302, n. 13 (In addition to the threat of criminal sanctions, “the prospect of issuance of an administrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides substantial additional support for the conclusion that appellees’ challenge . . . is justiciable” (citations omitted)).

It is a great victory for standing and potentially a great ruling for free speech. As for Driehaus, he has added ignobility to his earlier defeat in trying to seek criminal penalties against his critics. Unfortunately, Ohio is not unique in such laws and hopefully this decision will lead to additional challenges.

130 thoughts on “Supreme Court Rules In Favor Of Challenge To Ohio’s Criminalization of False Political Statements”

  1. As one unschooled in the law, and though I agree this Ohio law was much too vague, I cannot agree that politicians are able to shirk libel and slander laws at will due to “the nature of the game.”

  2. Nick,

    I imagine recent events will compel a reaction on many blogs, possibly this one which deals with the Constitution and law. At what point are high crimes and misdemeanors prosecuted?

    The ineligible President is acting as a tyrant. The executive branch is assuming ALL power. The White House ordered the patent revocation of the “Redskins” defying due process. The White House, democrat officeholders and the IRS have wilfully and deliberately destroyed evidence in the face of a congressional investigation. The Attorney General refuses to act on obvious suspicion of crime throughout the government. The White House, it may be suspected, is complicit in a campaign to induce Central American mothers and children to illegally pass through Mexico and cross the American border as sympathetic figures; similar to the Fast and Furious Campaign against gun ownership.
    The Benghazi “suspect” is being renditioned on a Navy ship to support the anti-Muslim video fiction as Bergdahl is being “rehabilitated” and “reintegrated,” in bizarre fashion, continuing in separation from his parents. ETC.

  3. Nick,

    There is a cancer growing on this Presidency.

    It has metastasized to Brit Hume, among many others.

    It may have been reflected today in polling results in the media.

  4. John, Britt Hume is a veteran and good reporter. However, he is not liberal. He is right of center. He had a long career w/ ABC, including being their WH reporter, prior to moving to Fox.

  5. Justagirlinseattle

    Elaine comments here and writes articles. Gene has moved on, now having his own website. Elaine’s work can be read there also.

    Gene’s site is

    Have a look if you like.

  6. John asked:
    Why is my post at 4:25 missing?

    The site says “duplicate post” when I retry.
    John, I think what might have happened was you tried to post a comment and for mysterious reasons it went into the spam trap, AKA The WordPress Vortex of Doom, and when you tried to repost the one that appeared to you to have disappeared the system then told you it was a duplicate post; that is of the one the system threw into spam.

    Don’t take this the wrong way, you post was certainly not spam to we humans here, but the spam algorithm is a bit on the overzealous side. We try to pick out spam as much we can, when commentators such as you run into difficulties, but we only come to the blog occasionally during the day due to our respective outside interests. But when someone says they lost a comment, we do our best to restore it quickly.

    Hope this helps.

  7. DREDD


    If American jurisprudence is objective, shouldn’t all decisions be unanimous?

    Does American jurisprudence impose the law through objective consideration

    or does it “legislate from the bench” through subjectivity when justices disagree

    with the effect of a law?
    That is deep kook aid John.

    The trolls have jurisdiction.”


    I concede, I am a kook and a troll.

    Now let’s consider the facts.

    Bernanke said, “the Constitution has evolved” except I see the original piece of
    paper with the original words. If we learn the definition of those words including
    sources and further, written words describing intent, we know what the law is
    and isn’t without ambiguity. Objectivity on the part of justices must lead to only
    one result. Subjectivity results in dissenting “opinions’ which are simply
    opposition to the effect of a law. The SCOTUS does not exist to legislate or to
    disagree but to assure the dominion and literal implementation of the

    Initial egregious failures of the SCOTUS to support and implement the
    Constitution were state secession, the Civil War and the Emancipation
    Proclamation. The failures have continued to this day. Most recently, the SCOTUS demonstrated its ideological bias, shed its duty and responsibility and upheld the ACA or Obama Care, declaring the electorate responsible because of its voting patterns.

    Clearly, the Declaration of Independence* establishes the right
    of states to secede saying,

    “it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    It cannot possibly be that divorce can be obtained in the case of the union of
    marriage of individuals, while in the case of a marriage or union of states, it cannot. Once the USSR threw off the yoke of the dictatorship of the proletariat, that union peaceably dissolved. Lincoln’s yoke of dictatorship, derived from his religious zeal, led to war, which is typically its basis.

    Congress has the power to declare war. By any definition, Lincoln conducted an unconstitutional war without declaration by Congress. The SCOTUS had no objective alternative than to declare Lincoln’s actions unconstitutional.
    The power of Commander in Chief did not confer the status of Supreme Dictator on Lincoln. It provided him the power to conduct military operations.

    Lincoln’s Emancipation Proclamation** confiscated private property which was secured with irrefutably legal bills of sale, receipts and deeds. The Constitution provides citizens the right to private property. Lincoln had no basis to impose Eminent Domain and did not propose compensation of property owners.

    In all cases, the SCOTUS issued subjective “decisions” which were demonstrations of their support of the effect of law or actions, NOT the implementation of the Constitution, including the demonstrations of intent in the Declaration of Independence and the writings of the Founders.

    The SCOTUS has one simple duty. Compare the Constitution to the facts and impose the literal words of the Constitution. The SCOTUS does not need to infinitely meander, in exponentially convoluted fashion, through the nebulous and mystical hinterlands of the legal realm. It must simply impose the literal Constitution with an economy of words and time.

    The SCOTUS does not prevail over the Constitution. The Constitution prevails over the SCOTUS. The SCOTUS is not a dictatorial ruling body. It consists of “public servants” in service to the nation. The egoism and arrogance of the SCOTUS has led it to “legislate from the bench” through arbitrary, subjective decisions based on ideology. All decisions must be unanimous; unanimous in support of the facts and the words of the Constitution and the definition and intent of those who wrote it. Decisions must not be split or various opinions of the effects and consequences of law or the Constitution.

    Split decisions should be unacceptable anomalies and subject to punitive consequences. As an analogy, medical diagnoses must be unanimous. Cures and therapies must be unanimous. Malpractice is the finding when doctors disagree. Malpractice must be the finding when Supreme Court Justices dissent.



    *The Declaration of Independence:
    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness[3]

    **The Emancipation Proclamation was a presidential proclamation issued by President Abraham Lincoln on January 1, 1863, as a war measure during the American Civil War, directed to all of the areas in rebellion and all segments of the Executive branch (including the Army and Navy) of the United States. It proclaimed the freedom of slaves in the ten states that were still in rebellion, thus applying to 3 million of the 4 million slaves in the U.S. at the time. The Proclamation was based on the president’s constitutional authority as commander in chief of the armed forces; it was not a law passed by Congress.

    P.S. Whew!!! Excuse me. Somehow that seemed relevant. It was cathartic.

    Thank you.

  8. NEWSFLASH – Brit Hume describes Obama as having a “failed Presidency.”

    Even the liberal media are now compelled to admit the truth.

    All we need now are Woodward and Bernstein to present the facts.

  9. NEWSFLASH – Lois Lerner – Six Other Top IRS Officials’ E-mails Missing


    Now we know who is guilty of conspiracy, abuse of power, election fraud,

    providing false testimony and wilful and deliberate destruction of evidence at

    the IRS;

    ALL the employees with missing e-mail.

    “Geez, there’s gonna be a whole lotta perp walks.”

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