WASHINGTON — U.S. Supreme Court justices across the ideological spectrum voiced doubts on Tuesday about a state law that prohibits false statements during a political campaign.
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 pro-life advocacy group’s provocative claim that a Democratic congressman’s vote for President Barack Obama’s health care 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 pro-life group, announced it would criticize the vote of incumbent congressman Steven Driehaus for Obama’s health care 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 underway. 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.
“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 health care 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 health care 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.