The 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.
The 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.
The short of the story is:
As long as you have enough CA$H to back up your lie in a court of law…
Annie
Some celebrate the ability to tell lies… others prefer a good honest politician.
Just look at the revelers… Money talks and money lies. How PC, eh?
So BobEsq. Are you aware that some here think it’s trollery to bring up the lack of WMD in Iraq? After all we are discussing LIES politicians tell, are we not?
Annie – have you set yourself up as the troll monitor?
So now that this case is law, those who live in Ohio can talk about the wikipedia posting that Karl Rove had sex with a dog in high school. He needs to come out so to speak and deny it. The story is making the rounds of the blogs.
Just ignore trolls who think they run this blog.
This is a good topic and good discussion. Focus on what’s important, and ignore that which is not.
KarenS, Just ignore trolls seeking attention.
How many lives and how much money were spent unnecessarily for the LIE the Bush Administration told?
Just like the “Weapons of Mass Destruction” whopper.
Kraaken:
I completely agree that there should be consequences when our elected officials lie to us.
The unintended consequence of the above law was that a politician could threaten a lawsuit for critics, and scare them into silence, even when they spoke the truth. For example, the owner of the billboard refused to allow the sign because of the threat of a lawsuit. By the time the case lost in court, an election would be over.
I am unclear as to what the difference is between this law and the standing laws on libel and slander.
At the very least, I think the consequence for an elected official lying should be losing the next election by a landslide. Such as the whole “if you like your plan you can keep it. If you like your doctor you can keep it. And the ACA will save families $2500/year.” You know. Real whoppers. 🙂
There were efforts made to prevent federal funding of elective abortion, such as the Hyde Amendment, with is annually added to the funding of the Department of Health and Human Services.
However, Hyde was not added to the ACA.
There are in fact ways in which taxpayers do pay for elective abortions:
For subsidized plans in which elective abortion are covered – the subsidies get paid to the insurance provider. In order to segregate federal funds, the provider adds an abortion premium to all policy holders, man, woman, and child, who belong to those plans who cover elective abortions. So plans with elective abortions do get subsidized, but the actual abortion benefit is paid out of mandatory abortion premiums that all participants pay as part of their premium.
24 states prohibited insurers from selling plans on the exchange that covered elective abortions.
Planned Parenthood received lucrative grants to act as navigators, and are listed in some areas as Essential Community Providers. The ACA requires some coverage of ECPs.
So, basically, we have 2 groups of politicians working at cross-purposes within the ACA – one to prevent federal funding of elective abortions, and one to ensure they do get federal funding. The result is a mishmash and neither side is really happy with the result.
http://www.heritage.org/research/reports/2014/01/obamacares-many-loopholes-forcing-individuals-and-taxpayers-to-fund-elective-abortion-coverage
Kraaken, Good comment. I think part of the answer to your question is that political speech is the MOST protected, as it should be.
So then Where does that put our libel and slander laws? I would assume that a reasonable person could wave the ‘free speech’ flag on those issues as well Does that also mean that it’s okay for the police to lie to US since to deny them that would be to abuse their First Amendment rights? I’m really tired pf politicians and government officials lying to us (the simple fact that that is par for the course doesn’t make it either palatable or right) and slinging mud, whether it be the Dims or the Republicants. This reminds me of the ‘Thousand Blossoms’ campaign Of Mao in the late fifties where people were encouraged to criticize government officials (“Let a thousand flowers bloom. Let a thousand thoughts contend.”) only to be imprisoned or executed in the end because they did not ‘blossom correctly’.We seem to have become comfortable with the fact that SOME speech is prohibited (fire in a crowded theatre, saying you want to kill the President) so why should it be such an inconvenience to treat lies and slanders in the political arena as actionable?
It seems many people here only like SCOTUS decisions when they can ridicule Nino, Thomas, Alito, etc. What people don’t say, or don’t do, often tells you more than what they say and do.
Professor Turley made a good point that the law would allow politicians to sue any critics, whether their statements were true or not. If you don’t have the money to back up your claim in court, you can no longer criticize.
Don’t libel and slander laws already protect against false claims?
This case mentions an important pleading reality for challenges to statutes: “the amended complaint alleged that Ohio Rev. Code Ann. §§3517.21(B)(9) and (10) are unconstitutional both facially and as applied” (emphasis added).
Slightly OT, I have written an article on the free speech violations that are regularly committed in Family Courts.
Please give a read and comment there if possible:
http://www.avoiceformen.com/men/fathers/american-family-courts-the-first-amendment-and-violations-of-free-speech/
Gary T, I retrieved your comment at 1:00.
Good decision.
The Farce was with the Ohio Legislature but the force was with the court this time.
The best part of this is that it is unanimous.
Well. We have a President violating the Constitution on a regular basis. And, we have SCOTUS unanimously strengthening the First Amendment as Dems speak of “amending” it. We may end up w/ an OK Corral moment in the near future. Your class is a better odds maker than Jimmy the Greek. I wonder who they would pick?