Supreme Court justices across the ideological spectrum seemed deeply suspicious Tuesday of an Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.
Now they have to find a way for someone to bring them the proper challenge.
Technically, the court was reviewing a decision by a lower court that an antiabortion group did not have the legal standing to challenge the constitutionality of Ohio’s law, which is similar to ones in more than a dozen other states.
But the justices couldn’t resist giving a preview of their skepticism about what Michael A. Carvin, the Washington lawyer representing the group Susan B. Anthony List, called Ohio’s “ministry of truth” during oral arguments.
“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 Anthony M. Kennedy asked Ohio State Solicitor Eric E. Murphy.
Added Justice Samuel A. Alito Jr., “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” to challenge it.
As it happens, Murphy’s boss, Ohio Attorney General Mike DeWine (R), has constitutional doubts about the law, too. He is defending it on behalf of the state but has filed a personal brief with the court registering those concerns.
The best Murphy seemed able to do in Tuesday’s oral arguments was to continually remind the court that all that was before them was a decision that said the antiabortion group could not bring its challenge because it lacked standing.
The dispute arises from the 2010 reelection campaign of then-Rep. Steve Driehaus (D-Ohio) and his vote in favor of the Affordable Care Act. Susan B. Anthony List wanted to erect a billboard stating, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”
Driehaus filed a complaint with the Ohio Elections Commission, saying such a claim would violate state law that makes it a crime to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.”
He contended that the group’s statement was false because the health-care law required that abortion be paid for by a separate account funded solely by enrollees, even though insurers of low-income families would be subsidized with federal money.
The antiabortion group, according to its petition to the court, contended that was a “mere accounting gimmick.”
Because of Driehaus’s complaints, the advertising company did not put up the billboard.
A panel of the elections commission voted 2 to 1 to find there was probable cause that Susan B. Anthony List’s accusation would violate the law. But Driehaus withdrew the complaint, and the U.S. Court of Appeals for the 6th Circuit said a lawsuit brought by the Susan B. Anthony List challenging the law could not go forward because there was no longer a threat that the group would be prosecuted under the legislation.
Carvin said that under the tight time frame of elections, the decision meant the law could never really be challenged.
Justice Ruth Bader Ginsburg told Murphy that groups accused of lying do suffer harm even if they are not prosecuted.
“They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement,” she said. “And 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 noted DeWine’s brief when she questioned Murphy.
“I mean, your own office expresses grave concern about the constitutionality of this statute. So that suggests somebody should be able to get into federal court to do this,” she said.
Both liberal and conservative groups have filed briefs supporting the group. The case is Susan B. Anthony List v. Driehaus.