U.S. Supreme Court hears case challenging Ohio ban on political lies

Apr. 22, 2014 |
Written by Deirdre Shesgreen
Gannett Washington Bureau

WASHINGTON — Ohio’s ban on political lies came under sharp scrutiny at the Supreme Court on Tuesday, with a majority of the justices skeptical that the law did not chill free speech even if it’s not enforced through criminal prosecution.
In a lively, one-hour argument that touched on broad First Amendment questions and nitty-gritty legal issues, the justices highlighted the electoral implications of the legal clash before them — which started in Cincinnati during the 2010 congressional elections.
The justices seemed to reject Ohio State Solicitor Eric Murphy’s argument that those challenging the state law, which prohibits making false statements about political candidates, could not show it had stifled their speech in the past or would do so in the future.
Murphy also argued the state has a “compelling interest” in policing false speech in campaigns because it could sway the outcome of an election.
But Justice Samuel Alito, a conservative, said Ohio appeared to have a system of regulating election rhetoric under which “arguably there’s a great chilling of core First Amendment speech, and yet you’re saying that basically you can’t get into federal court.”
Michael Carvin, an attorney for the plaintiffs — Susan B. Anthony List, an anti-abortion group, and COAST, a Cincinnati anti-tax group — argued the two groups faced a “clear and very credible” threat of prosecution under the law, curbing their First Amendment rights and giving them the right to challenge the Ohio ban in a lower court.
“This is election speech . . . It’s obviously the core of the First Amendment,” Carvin said. “All we’re trying for is our day in court.”
The question before the justices is not whether the Ohio law violates the First Amendment, although that was front-and-center on Tuesday. Instead, the justices are weighing how and when a group or individual can challenge the law.
The court’s decision could have major consequences for elections in Ohio, as well as the 15 other states that have similar bans on political lies. And the justices seemed very aware of the potential impact of their ruling.
“The (2014) elections are coming up,” said Justice Stephen Breyer, one of the court’s liberals. “People have to know what they can say and what they can’t say.”
The Cincinnati case began during the 2010 race between then-Democratic Rep. Steve Driehaus and his GOP challenger Steve Chabot of Westwood. The anti-abortion group SBA List wanted to launch a billboard ad campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health reform law.
Driehaus sought a ruling from the Ohio Elections Commission to block the ads, saying they violated the state’s false-claims law. The billboards never went up because Driehaus’ attorney threatened the company with legal action.
The elections commission, after conducting a preliminary review, found “probable cause” that SBA List had violated the state law. The commission never reached a final determination because Driehaus dropped the matter after losing the election.
But SBA List challenged the Ohio law in federal district court, arguing it violated the group’s free-speech rights. COAST also challenged the law, saying it also wanted to criticize Driehaus but was afraid to do so after seeing SBA List dragged before the commission.
The district court dismissed the suits, ruling SBA List and COAST lacked proof of legal injury. They didn’t have the right to sue, the court said, because no criminal charges were filed.
The U.S. Court of Appeals for the Sixth Circuit affirmed that decision, saying the parties couldn’t challenge the law if there was no imminent threat of enforcement.
Carvin told the justices that the lower courts’ decisions put advocacy groups like SBA List in an “absurdly high straightjacket,” requiring them to be prosecuted for making false statements before they could challenge the law as a violation of their First Amendment rights.
It “put us in this Catch-22 endless cycle of suppressing speech, deterring speech, chilling speech, but never being able to get to a court to adjudicate our First Amendment (claims),” he said.
Carvin said SBA List planned to repeat its political attack in the next elections, and he mentioned in particular a plan to target Rep. Marcy Kaptur, D-Toledo.
“The only difference will be, instead of Representative Driehaus, we will substitute Representative Kaptur,” Carvin said.
The Obama administration weighed in on behalf of SBA List and COAST. Eric Feigin, a top attorney with the Department of Justice, told the justices that the election commission’s actions amounted to a “significant sanction” and should be enough to give the groups standing in federal court

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