Contributor, The Volokh Conspiracy

Former Rep. Steve Driehaus (D-Ohio) in 2009. (Photo by Scott J. Ferrell/Congressional Quarterly/Getty Images)

The U.S. Court of Appeals for the Sixth Circuit just held today, in Susan B. Anthony List v. Driehaus, that the Ohio ban on “disseminating false information about a political candidate in campaign materials during the campaign season ‘knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate'” violates the First Amendment.

“In 2010, then-Congressman Steven Driehaus filed a complaint with the Commission alleging that SBA List violated Ohio’s political false-statements laws by issuing a press release accusing him of voting for ‘taxpayer-funded abortion’ by voting for the Affordable Care Act. A panel of the Commission issued a probable cause finding that SBA List violated the law.” The Susan B. Anthony List sued, and the case went to the Supreme Court in 2014 on the preliminary question of whether the Susan B. Anthony List had standing to challenge the statute. The Court said that the group did have standing, and thus cleared the path for a decision on the First Amendment issue. Here are my thoughts on the decision:

1. Knowing or reckless falsehoods that defame a person are constitutionally unprotected libel, and indeed may well be criminally punishable. But the Sixth Circuit noted that the statute reaches “not only defamatory and fraudulent remarks, but all false speech regarding a political candidate, even that which may not be material, negative, defamatory, or libelous.” And United States v. Alvarez (2012), which struck down the Stolen Valor Act, concludes that even knowingly false statements aren’t categorically excluded from First Amendment protection (unless they fit within an exception such as for defamation, libel, and the like).

2. The Sixth Circuit concluded that content-based laws, such as this one, are subject to strict scrutiny (at least when they aren’t limited to speech that falls within a First Amendment exception). This means they are unconstitutional unless they are narrowly tailored to a compelling interest. But while there are compelling interests in protecting “voters from confusion and undue influence,” and “ensuring that an individual’s right to vote is not undermined by fraud in the election process,”

Ohio’s laws do not pass constitutional muster because they are not narrowly tailored in their (1) timing, (2) lack of a screening process for frivolous complaints, (3) application to non-material statements, (4) application to commercial intermediaries, and (5) over-inclusiveness and under-inclusiveness.

First, the timing of Ohio’s administrative process does not necessarily promote fair elections. While the laws provide an expedited timeline for complaints filed within a certain number of days before an election, complaints filed outside this timeframe are free to linger for six months. Even when a complaint is expedited, there is no guarantee the administrative or criminal proceedings will conclude before the election or within time for the candidate’s campaign to recover from any false information that was disseminated. Indeed, candidates filing complaints against their political opponents count on the fact that “an ultimate decision on the merits will be deferred until after the relevant election.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2346 (2014) (quoting Br. of Amicus Curiae Ohio Att’y Gen. Michael DeWine in Supp. of Neither Party). A final finding that occurs after the election does not preserve the integrity of the election. On the other hand, in many cases, “a preelection probable-cause finding … itself may be viewed [by the electorate] as a sanction by the State,” Driehaus, 134 S. Ct. at 2346 (quoting DeWine Amicus Br.), that “triggers ‘profound’ political damage, even before a final [Commission] adjudication.” The timing of Ohio’s process is not narrowly tailored to promote fair elections.

Second, Ohio fails to screen out frivolous complaints prior to a probable cause hearing. While this permits a panel of the Commission to review and reach a probable cause conclusion on complaints as quickly as possible, it also provides frivolous complainants an audience and requires purported violators to respond to a potentially frivolous complaint. “Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents.” There is no process for screening out frivolous complaints or complaints that, on their face, only complain of non-actionable statements, such as opinions.

Indeed, some complainants use the law’s process “to gain a campaign advantage without ever having to prove the falsity of a statement … tim[ing] their submissions to achieve maximum disruption … forc[ing political opponents] to divert significant time and resources … in the crucial days leading up to an election.” Driehaus, 134 S. Ct. at 2346 (quoting DeWine Amicus Br.). The potential for attorney’s fees and the costs for frivolous complaints does not save the law because this finding of frivolity does not occur until after a probable cause finding or a full adjudicatory hearing. The process of designating a panel, permitting parties to engage in motion practice, and having a panel conduct a probable cause review for plainly frivolous or non-actionable complaints is not narrowly tailored to preserve fair elections.

Third, Ohio’s laws apply to all false statements, including non-material statements. Though the Commission argues that the political false-statements laws require that the false statement be material, no such requirement exists on the law’s face, nor has either party cited any case in which courts have imputed a materiality requirement to the political false-statements laws. Thus, influencing an election by lying about a political candidate’s shoe size or vote on whether to continue a congressional debate is just as actionable as lying about a candidate’s party affiliation or vote on an important policy issue, such as the Affordable Care Act.

Further, the law prohibits false statements regarding a political candidate — even outside the political arena — so long as the statement is “designed to promote the election, nomination, or defeat of the candidate,” and is made in broadly defined “campaign materials.” Penalizing non-material statements, particularly those made outside the political arena, is not narrowly tailored to preserve fair elections.

Fourth, Ohio’s laws apply to anyone who advertises, “post[s], publish[es], circulate[s], distribute[s], or otherwise disseminate[s]” false political speech. Such a broad prohibition “applies not only to the speaker of the false statement but also to commercial intermediates like the company that was supposed to erect SBA List’s billboard in 2010.” Conducting hearings against or prosecuting a billboard company executive, who was simply the messenger, is not narrowly tailored to preserve fair elections.

Fifth, the law is both over-inclusive and underinclusive. Causing damage to a campaign that ultimately may not be in violation of the law, through a preliminary probable cause ruling, does not preserve the integrity of the elections and in fact undermines the state’s interest in promoting fair elections. At the same time, the law may not timely penalize those who violate it, nor does it provide for campaigns that are the victim of potentially damaging false statements.

“[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Though Ohio’s interests “are assuredly legitimate, we are not persuaded that they justify [such an] extremely broad prohibition.” Indeed, courts have consistently erred on the side of permitting more political speech than less….

Other courts to evaluate similar laws post-Alvarez have reached the same conclusion. See 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014) (“[N]o amount of narrow tailoring succeeds because [Minnesota’s political false-statements law] is not necessary, is simultaneously overbroad and underinclusive, and is not the least restrictive means of achieving any stated goal.”); Commonwealth v. Lucas, 34 N.E.3d 1242 (Mass. 2015) (striking down Massachusetts’ law, which was similar to Ohio’s); see also Rickert v. State Pub. Disclosure Comm’n, 168 P.3d 826 (Wash. 2007) (striking down Washington’s political false-statements law, which required proof of actual malice, but not defamatory nature)….

3. Here’s my question: In Alvarez, only the four-Justice plurality concluded that restrictions on knowingly or recklessly false statements should be subject to strict scrutiny (again, unless the law is limited to defamation, fraud, perjury, or similar unprotected speech). A two-Justice concurrence concluded that they should be subject only to intermediate scrutiny, and a three-Justice dissented concluded that they should generally be constitutional (with some exclusions that the Sixth Circuit didn’t discuss, and likely aren’t applicable here). Why is strict scrutiny the right test, given that it got the votes of only four Justices?