US high court takes on law barring false political speech

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The justices of the U.S. Supreme Court seemed to cast some constitutional doubt on a state statute that prohibits making false statements about political candidates during oral arguments Tuesday in the case of Susan B. Anthony List v. Driehaus, No. 13-193.

But the court may not reach the merits of the case. The justices questioned if the plaintiffs have standing to challenge the law because they are not currently accused of violating it.

The Ohio statute at issue prohibits making false statements about political candidates. Susan B. Anthony List is a pro-life group that ran radio and billboard advertisements criticizing then-U.S. Rep. Steven Driehaus for his support of the Affordable Care Act. The ads said, among other things, that Driehaus “voted for taxpayer funding of abortion” by voting for the law.

Driehaus filed a complaint with the Ohio Elections Commission, claiming the ads violated the state statute.

A panel of the commission found probable cause that the law had been violated and the complaint was referred to the full commission. Susan B. Anthony List then filed suit in federal court challenging the constitutionality of the state law.

Meanwhile, Driehaus lost his reelection bid and withdraw his complaint. Another group, the Coalition Opposed to Additional Spending and Taxes, also filed suit claiming that the commission’s probable cause finding against Susan B. Anthony List chilled the constitutionally protected free-speech rights of others who might consider running similar ads.

The cases were consolidated and later dismissed on the grounds of standing, ripeness and mootness.

The 6th U.S Circuit Court of Appeals affirmed, finding that because there was no threat of imminent prosecution, the lawsuit was not ripe. Furthermore, because the probable cause finding of the commission did not amount to a finding that the law was violated, the groups lacked standing.

The Supreme Court granted the groups’ petition for certiorari.

Chilling speech?

Michael Carvin, a partner in the Washington office of Jones Day and attorney for Susan B. Anthony List, argued that there is a “clear and very credible threat of enforcement” against his client or any other group who seeks to run similar ads in the future.

He urged the justices to allow his clients to presume that they will be prosecuted if they run similar ads in the future.

Without such a “presumption that the state will enforce its own laws, you [will] have created an insoluble dilemma for speakers,” Carvin said. “You condition their access to the political marketplace of ideas on a very serious threat of being dragged into” litigation.

“You think that even if your client speaks a falsehood, it still chills [speech] improperly?” Justice Sonia Sotomayor asked.

“We think that if the commission is going to drag us in front of them to justify our political speech … that’s (A) a cognizable injury, and (B) unconstitutional,” Carvin replied.

Justice Ruth Bader Ginsburg addressed the procedural issues.

“Do you think this is a matter of standing or ripeness?” Ginsburg asked.

“I can’t figure out the difference between standing and ripeness in this context,” Carvin said, “but no question that we are being subject to something.”

Ohio State Solicitor General Eric E. Murphy argued that any potential injury suffered by the groups is “speculative.”

“They were challenging specific congressmen” in a past election, Murphy said.

Justice Antonin Scalia noted that these are not simply “anti-Driehaus” groups.

“They are about opposition to the abortion funding portion of the Affordable Care Act,” he said, “and they’re going to make the same, the same contentions against anybody else who runs for office who voted for the act.”

Chief Justice John G. Roberts Jr. noted that if a group runs a similar ad and is subject to a complaint, the lengthy commission process could eat up most if not all of the time before the election. In the meantime, they will have been publicly accused of lying. “Just that alone is going to diminish the effect of their speech,” he said.

“They didn’t assert any type of reputational injuries in the 6th Circuit,” Murphy said. “And I think it would be entirely speculative to suggest that those would exist here.”

Murphy also noted that the only way groups can face commission scrutiny is if someone files a complaint. In this case, the complainant lost his election and later moved out of the country.

“He is in Africa now,” Murphy said of Driehaus. “So I don’t think he’ll be filing complaints any time soon.”

“He really lost, didn’t he?” Scalia deadpanned, drawing laughter from the crowd.

A decision is expected later this term. Follow @dcdicta