U.S. Supreme Court Justices bash Ohio election law

By Sabrina Eaton, Plain Dealer Washington Reporter
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on April 22, 2014

WASHINGTON, D.C. — At a U.S. Supreme Court hearing Tuesday about an Ohio law that criminalizes telling lies during a political campaign, every Supreme Court justice save for typically silent Clarence Thomas expressed reservations about the law.
Representatives of an anti-abortion group called the Susan B. Anthony List challenged the law on free speech grounds, while the state of Ohio argued it has a compelling interest in policing fraudulent statements that could have an impact on elections. A decision on the case is expected this summer.
While the Justices were asked to merely decide whether a lower court erred in saying the Susan B. Anthony List couldn’t challenge the law because it hadn’t been found guilty of a violation, many of them criticized the law itself. Here’s some of what they had to say:
Chief Justice John Roberts: “In other words, the proceedings are going on and people’s speech is being chilled and it’s back and forth, then the election is over, and people say, oh, forget about it.”
Justice Antonin Scalia: “I don’t care if all the commission says is, you know, there is some reason to believe that they were lying. Even if it’s that minimal, you are forcing them, and it is pretty sure that it’s going to happen because someone will complain, the candidate they are criticizing, you are forcing them to go through this procedure in the midst of an election campaign, right?”
Justice Anthony Kennedy: “Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”
Justice Stephen Breyer: “Why can’t a person say, there are things I want to say politically and the Constitution says that the State does not have the right to abridge my speech and I intend to say them. And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm.”
Justice Ruth Bader Ginsburg: “You said there was no credible threat of prosecution, but what about the harm that is occurring? They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement. And that, just that alone, is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?”
Justice Elena Kagan: “There are voters out there and they don’t know that probable cause is such a low bar as you describe it. They think probable cause means you probably lied, and that seems a reasonable thing for them to think and that’s a relevant harm and we should just — you know, we don’t even need the prosecution to serve as the relevant harm.”
Justice Samuel Alito: “You have a system that goes on and on, year after year, where 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.”
Justice Sonia Sotomayor: “How are you ever going to prove that one false statement cost somebody an election?

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