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.
“Supreme Court Moves Toward Allowing Falsehoods In Campaign Ads”
That is a huffington post caption expressing their take on this case.
As if politics is the place for honesty.
Unreal.
Dredd – that is a “poisoning the well’ fallacy at 4:29 pm, the other was 3:39 pm.
As far as I know, disagreeing with another commenter’s assertions are not trollery.
2:06 would be more precise.
Well, this thread went down the toilet @ 2:02p. So, let me put in a sad and cautionary note to tell all young men who chew tobacco. The great Tony Gwynn just died @ 54 of salivary gland cancer. He was a great player and better man. He gave much to the poor in San Diego. He could have been an announcer but decided to stay home w/ his family after retiring and coached SDSU. He built the school a beautiful ballpark. I saw him coach many times you could see the respect his players had for Tony. The pictures of Tony as a player always had that puffed check w/ a wad of tobacco. Tony had several surgeries and spent the last years of his life giving speeches to young players about the dangers of smokeless tobacco. A thread hijack of sorts admittedly. But it is something of substance.
I understand that the current decision is basically about standing, and that SBA will continue with its lawsuit, but few here seem to understand the implications of striking down this particular law, as seems likely either at the trial level or when the case reaches the Supreme Court. What striking down Ohio’s law will do is complete the triumvirate of election destruction begun with Citizens United and McCutcheon, and lead to a situation where the candidate (or organization supporting the candidate) with the most money will be able to tell the most infamous lies about his/their opponent(s), and the only recourse the DEFAMED candidate will have will be to spend EVEN MORE MONEY attempting to counter the FALSE ADVERTISING with true advertising. SBA claimed (or at least wanted to claim, as did COAST) that in voting in favor of the ACA, Driehaus voted “to fund abortions with tax dollars.” That statement is FALSE, since the ACA does no such thing, and besides, there are already laws in place to prevent that, most notably the Hyde Amendment, and President Obama’s agreement, in the form of an executive order, that the Hyde Amendment would apply equally to the ACA.
So SBA knew its intended advertisement was false, but was ready to post billboards concretizing that lie until Driehaus sued. But now, with SBA cleared to argue, in federal court, its plan to INTENTIONALLY LIE about a candidate it doesn’t support, and with the Supreme Court’s opinion in the instant case evidencing a clear intention to strike down Ohio’s law (if the district court or Sixth Circuit doesn’t do it first), the door will be open for future candidates, supporters and/or their supporters to blast the most infamous lies about their opponents, with the only recourse left for the defamed candidate being to spend even more money countering such lies in the media.
This court-approved “free pass” to INTENTIONALLY LIE about political opponents will mean the death of electorial politics, indeed the entire election process, in this country, and I’m sorry so few above seem to understand this.
rafflaw – you might want to read this. It looks at both sides of the issue. I am not sure which is true after reading this.
http://healthcarereform.procon.org/view.answers.php?questionID=001532
Annie
Ask Spinelli, he is the one who brought the concept of trollism into this discussion, Paul.
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on 1, June 16, 2014 at 2:06 pmNick Spinelli
KarenS, Just ignore trolls seeking attention.
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Yep “ust who would those trolls be?”
Easy one … they would be Ronnie Raygun if they could.
He put Cheney in jail after all (President Reagan Puts Cheney In Jail) but not for lying.
Anyway, I am proud of Uncle Clarence for outlawing democrats who tried to outlaw republican lying.
The silence would be deafening.
Ask Spinelli, he is the one who brought the concept of trollism into this discussion, Paul.
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on 1, June 16, 2014 at 2:06 pmNick Spinelli
KarenS, Just ignore trolls seeking attention.
“Just who” is a code word for Ronnie Raygun.
Paul C. Schulte
Dredd and Annie – and just who would those trolls be?
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Ronnie Raygun.
Dredd – fallacy of composition at 3:39om
John
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?
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That is deep kook aid John.
The trolls have jurisdiction.
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?
Paul C. Schulte
Annie – have you set yourself up as the troll monitor?
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… one must lie in a civil manner or F.I.S.A. will squeak yo grease yo … Oyez Oyez Oyez …
Kraaken
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?
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If truthiness was as easy as saying something, we would not have had the holy crusades.
But we did and they are still ongoing.
It is a matter of trust in people …
BarkinDog
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.
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That t-bagger is really pissed that he was called a dog.
Civil manner, not civil matter.
Nick Spinelli
This is a good topic and good discussion. Focus on what’s important, and ignore that which is not.
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As in US v Alvarez, the right to lie has been protected.
But one must lie in a civil matter or F.I.S.A. will squeak yo grease yo.
One person’s lie is another person’s truth.
Religiously.
Dredd and Max, exactly right on all counts.
Even Uncle Clarence came around this time.
Nick Spinelli
Well. We have a President violating the Constitution on a regular basis.
…
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A quote from the 1930’s …
Annie
Just ignore trolls who think they run this blog.
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The troll trinity crusaders.
Dredd and Annie – and just who would those trolls be?