Susan B. Anthony List v. Ohio Elec. Comm’n (S.D. Ohio Sept. 11, 2014) holds that the Ohio statute is unconstitutional, for much the same reasons as those given last week by the 8th Circuit in striking down a similar Minnesota law. (Earlier this year, Susan B. Anthony List prevailed before the Supreme Court on the preliminary procedural issue of justiciability.)
Note, though, that Ohio is in the 6th Circuit, home of Pestrak v. Ohio Elec. Comm’n (6th Cir. 1991), which upheld the very same law. To be sure, Pestrak might have been undermined by United States v. Alvarez (2012) (the Stolen Valor Act case), which held that even knowing falsehoods may well be constitutionally protected. But I’m surprised that there wasn’t more discussion from the district court about why Pestrak was no longer good law, especially since Alvarez was a splintered opinion, in which Justice Breyer’s controlling concurrence left a good deal of room (though not unlimited room) for regulating knowingly false statements.
I’m also surprised that the district court simply followed the Alvarez plurality in concluding that the law should be judged under strict scrutiny, a standard that was expressly rejected by five of the nine Justices. (The four-Justice plurality said the standard for restrictions on knowing falsehoods should be strict scrutiny, unless some existing exception applied; the two-Justice concurrence said it should be intermediate scrutiny; and under the three-Justice dissent, the standard would basically be the R.A.V. v. City of St. Paul test.) The 8th Circuit at least explained that it was applying strict scrutiny because the restriction here, unlike the Stolen Valor Act, was specifically focused on political speech. But the 6th Circuit Pestrak decision held that strict scrutiny doesn’t apply to restrictions on knowingly false political speech, and while Alvarez might have replaced that with intermediate scrutiny (as the test adopted by Justice Breyer’s controlling opinion), I don’t see what replaced it with strict scrutiny.
In any event, it will be interesting to see what the 6th Circuit does on appeal here, given both Pestrak and Susan B. Anthony List, assuming that the Ohio Elections Commission appeals.