Congress, Constitutional Law, Courts, Criminal law, Free Speech, Media, Politics, Society

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. Well Gurl, there is SO much I could say about rudness by some folks, it would only be the tip of the iceberg. I won’t go there on this blog as indicated by the civility rules. I’m glad you’re commenting, don’t stay away too long again. 🙂

  4. Annie… by the way… it is my pleasure….
    There is no need for people to be rude to others here… Tho, I was accused of this yesterday, I know that in NO WAY were my posts attacking a poster… and certainly not on the level as I am seeing in this thread…

  5. Gurl, that was so outlandish of Paul to say, I didn’t know if I understood him correctly at first.

  8. So, Paul… because I no longer live in the USA, I should not have an opinion on what happens in MY COUNTRY????

    Why Paul… do you think I need to STFU ?

    1. JAG – it is my understanding, and do correct me if I am wrong, that you like living were you are. As such it is my opinion, clearly not held by your buddy Annie, that you should not knock the politicians of the USA. You have already made your statement. I think that as an expat, it really is no longer “your country” but your former country.

  9. Paul, are you saying she is not be entitled to an opinion as an expat? If so, why not?

  10. Kraaken and Markkerns …. I liked what both had to say on this and
    I could not agree more…..

    There just has to be a better way…..

    what that is, I am just NOT so sure…..

  12. It does make me sick tho, that we are now advocating for people to lie to us about anything and get away with it, when it comes to politicians……

    Being able to smear a politician legally by making up lies about their
    voting record just makes me really uneasy…..

    I would give ANYTHING if we could DECREASE the number of Lobbying Groups to what we had back in the 80’s….

    Lobbying has really gotten out of control….
    Or Representatives no longer work for the will of the people….
    It is the will of the Lobbyist with the most money…..

    This is what happens when you have a LAZY uneducated
    population…..
    It is easy to make things up and people believe it without bothering to research on their own…..

    1. JAG – I thought you were an expat? If so, I would posit you have little to speak about when you speak of

      advocating for people to lie to us about anything and get away with it, when it comes to politicians

  13. At first glance… I LOVE any laws that would keep politicians from LYING about one another….

    I do see that it could be a slippery slope….

    But, I for ONE am really sick of the LIES being told on BOTH sides…
    and the lies are just getting worse and worse…..

    Of course it does not help that we have media institutions that are ALLOWED to lie and twist the trust and get away with it as often as they like….

    IN a country with Free Speech it is ANYTHING GOES…
    and lie as often as you like… trash a persons character as much as you wish…

    I think it is rather disgusting…. But… that is the price we pay…

    Now if the left would hire more psychopaths…. WE MIGHT be able to
    counter this at least…..
    ————————————————————–

    and may I say…. Come on guys…. have a little freaking respect….

    There is no reason to call Annie a Troll…. that is just rude and uncalled for….

    Again… we are on a LAW Blog…..NOT on one of the right wing smear blogs…. Let’s act like it…

    Does EVERY single discussion have to break down into person attacks of one another???

    This is getting ugly…. It was NOT like this when I first came around…

    If you disagree with something somebody has to say.. DEBUNK it or ignore it or debate it with some civility….
    But calling somebody a Troll is just uncalled for…..

    Annie is really nice and adds a lot to these comments….

  15. rafflaw – two lawyers vigorously advocate for their clients in court. Does the loser always get court costs and attorney fees? Here the problem seems to be that you can stop speech before it starts. Much like taking down a video by filing a false copyright claim.

  16. Did the Court make any distinction between false statements and out right lies? Would the court find differently if the Ohio law provided that if someone sues under the law, the loser pays all court costs and attorney fees? Is an intentional lie “political speech”?

  17. Pingback: Supreme Court Allows Challenge To Law Against Election “Lies” To Go Forward

  18. Darren, Amen. We have discussed SLAPP legislation previously. It is almost as pernicious as PC in thwarting our First Amendment rights.

  19. I am glad to see this Ohio law unanimously overturned by the Supremes. Criminally charging political critics is more like a banana republic than what we should expect of state government.

    Now it might time for Ohio to enact anti-SLAPP legislation.

    1. Darren – I have to admit that every time someone mentions the Supremes I see three beautiful women singing Baby Love. 🙂

  20. Paul C. Schulte

    Dredd – fallacy of composition at 3:39om
    ====================
    Your are attempting to graduate from robot logic 101 to 201?

    What time is “om” … you doing Reggae now or still just with the yogurt?

Comments are closed.