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 The Ohio law allows candidates and other citizens to file a
complaint for allegedly false slogans, prompting a state election
commission hearing and public scrutiny of advocacy groups' or
individuals' claims in the middle of a campaign.
Justice Anthony Kennedy, a Republican appointee, speculated that
calling in a group's leaders "to justify what (they're) going to
say" could impinge on free speech rights under the U.S.
Constitution's First Amendment. Justice Ruth Bader Ginsburg, a
Democratic appointee, observed that simply being forced to defend an
advertisement could be costly and diminish speech at a crucial point
in a campaign.
The case began with an anti-abortion advocacy group's provocative
claim that a Democratic congressman's vote for President Barack
Obama's healthcare law, known as Obamacare, was a vote to fund
abortions, and his attempt to set the record straight.
At its broadest, the dispute tests political speech rights. It has
drawn a diverse array of politically active groups who say the
government should not try to squelch campaign speech, even when it
is audacious and far from the truth.
But the narrow question before the nine justices on Tuesday was
whether an organization may challenge a law that arguably suppresses
free speech when it is not clear the organization would face
prosecution under the law.
The court's answer and wider reverberations from the dispute could
affect the kind of political advertising seen in campaigns ahead of
November's congressional elections. A ruling might also illuminate
the coverage for false statements under the First Amendment.
In 2012, the Supreme Court struck down a U.S. law that made it a
crime to lie about military honors, but the justices splintered in
their speech-rights rationale in that case, United States v.
Alvarez.
The new dispute traces to a 2010 congressional race in Ohio, when
the Susan B. Anthony List, an anti-abortion group, announced it
would criticize the vote of incumbent congressman Steven Driehaus
for Obama's healthcare law. It said it would put up billboards in
his district saying "Shame on Steve Driehaus! Driehaus voted FOR
taxpayer-funded abortion."
Driehaus, who opposes abortion, filed a complaint with the Ohio
Elections Commission alleging the assertion violated the law that
makes it a crime to make a knowingly false statement. A commission
panel voted 2-1 to find "probable cause" for a full commission
hearing. The Susan B. Anthony List then sued in federal court
challenging the constitutionality of the law.
Driehaus lost in that November's general election and the commission
took no other action. Federal courts dismissed the constitutional
free-speech claim.
CHILLING EFFECTS ALLEGED
In the group's appeal to the high court, Washington lawyer Michael
Carvin said the statute chills free speech even if no prosecution is
under way. The Susan B. Anthony List never put up the promised
billboard because, the group said, the private company hired to
erect it was intimidated by Driehaus' complaint.
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"These laws," Carvin wrote, "do exactly what (the) Alvarez (case)
warned against, inserting state bureaucrats and judges into
political debates and charging them with separating truth from
oft-alleged campaign 'lies.'" He said about one-third of the 50 U.S.
states have on the books statutes that prohibit false statements
during a political campaign.
During Tuesday's hearing, Chief Justice John Roberts said other
advocacy groups might be "intimidated" by what happened to the Susan
B. Anthony List. Justice Elena Kagan added that people might think
that a commission's finding of "probable cause" for a hearing
actually means that the speaker "probably lied."
Ohio state lawyers countered in their filing that any future
commission action or harm to a speaker is purely speculative.
Driehaus now lives in Africa and is the Peace Corps country director
in Swaziland. In a telephone interview on Monday, he said he
believed it important to challenge a statement that impugned his
integrity. "I'm a pro-life Democrat. They were suggesting that I
completely changed my character. ... I fully support free speech but
I think politics is going too far."
Marjorie Dannenfelser, president of the Susan B. Anthony List, said
in a separate interview that she thought Driehaus engaged in the
more egregious political tactic by prompting Ohio Election
Commission action during a campaign.
Defending the claim that a vote for Obamacare was a vote to fund
abortions, an assertion rejected by the Obama administration and
many healthcare analysts, Dannenfelser insisted more women would be
able to obtain insurance for abortion through new premium-subsidies
and expansion of the joint state-federal Medicaid program.
Dannenfelser said that the Susan B. Anthony List has begun a new
billboard campaign against three Democratic U.S. senators who voted
for the Obama healthcare law, Kay Hagan of North Carolina, Mary
Landrieu of Louisiana and Mark Pryor of Arkansas.
The case is Susan B. Anthony List v. Driehaus, U.S. Supreme Court,
13-193.
(Reporting by Joan Biskupic; editing by Cynthia Osterman)
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