Supreme Court Allows Challenge To Law Against Election “Lies” To Go Forward
A hopeful First Amendment decision from the Supreme Court.
In a unanimous ruling, the Supreme Court held in a decision handed down today that a conservative group could proceed with its First Amendment challenge to an Ohio law that purports to ban false statements during political campaigns:
The court ruled unanimously that two advocacy groups could challenge an Ohio law that makes it a crime to make knowingly or recklessly false statements about political candidates that are intended to help elect or defeat them. The first offense could lead to six months in jail and the second could lead to disenfranchisement.
Lower courts had dismissed the case, saying the groups seeking to challenge it had not faced imminent harm sufficient to give them standing to sue. Justice Clarence Thomas, writing for the court, said the groups “have alleged a credible threat of enforcement” of the law and so were not barred from pursuing their challenge to it.
The case was brought by Susan B. Anthony List, an anti-abortion group, and Coalition Opposed to Additional Spending and Taxes. Both had sought to criticize Steve Driehaus, a Democrat, in the midst of what turned out to be his unsuccessful 2010 run for re-election to the House of Representatives. They asserted that his vote in favor of the Affordable Care Act could be interpreted as one “for taxpayer-funded abortion.”
The Supreme Court took no position on the truth of that statement.
Mr. Driehaus filed a complaint against the anti-abortion group with the Ohio Elections Commission, which makes preliminary determinations and can recommend criminal prosecutions. It issued a finding of probable cause that the group had violated the law. Mr. Driehaus dropped his complaint after he lost the election and before the case had gotten much further.
The federal appeals court in Cincinnati dismissed the groups’ suit challenging the law, saying they no longer had anything to worry about. In his opinion reversing that ruling, Justice Thomas said the groups had shown that they intended to repeat their critique of the Affordable Care Act against other candidates and that “the threat of future enforcement of the false statement statute is substantial.” That meant, he said, that their lawsuit could move forward.
Lyle Denniston summarizes the Court’s opinion:
If a state makes it a crime to issue false statements during an election campaign, as sixteen states now do, such a law is open to a constitutional challenge by a group once accused of violating it and at significant risk of being accused again, the Supreme Court ruled unanimously on Monday.
The decision appeared to break little new ground on the right to test in court a law that is claimed to interfere with rights of free speech under the First Amendment. The decision in Susan B. Anthony List v. Driehaus, however, said nothing about whether such a test should or would succeed in nullifying the law.
Ohio’s false statement law, at issue in this case, makes it a crime with punishment of up to six months in jail and a fine of up to $5,000 to put out campaign literature or advertisements that say anything known to be false about a candidate’s voting record. The law also assigns a state agency, the Ohio Elections Commissions, to police falsity in campaigning, with the authority to reprimand for violations.
Those two prospects — criminal prosecution and a commission probe — are enough in combination, the Court declared, to pose a significant risk that they will be used against activist groups that had faced an earlier complaint, and that plans to say again in the future the same thing that got them into trouble before.
It is not necessary, Justice Clarence Thomas wrote for the Court, that an actual complaint be on file before a group confronting that kind of risk can sue to get the law overturned in court.
This case involved two groups that are opposed to abortion, and that did — or planned to — go after a Democratic congressional candidate who had voted in favor of President Obama’s measure seeking a broad new reform of the nation’s health care system. The two groups’ message was that a vote for the Affordable Care Act was a vote in favor of spending federal taxpayer money to pay for abortions.
The U.S. Court of Appeals for the Sixth Circuit ruled that the two groups had not made a sufficient point that they actually faced prosecution or administrative review in the future, because it was not clear that the same factual situation would arise in a future campaign.
The Supreme Court overturned that result, concluding that both of the groups were sufficiently at risk of “imminent” prosecution or commission review as to enable them to file their First Amendment challenge. The Court, though, sent the case back for lower courts to decide whether the two groups could satisfy the other basic requirements for having a right to sue.
Eugene Volokh, Jonathan Turley, and Rick Hasan all have their won write-ups on the court’s ruling that are all worth reviewing for those interested in the subject. It’s important to note, though, that this case is far from the end of the Susan B. Anthony List’s legal claims against the State of Ohio. All the Court has decided here is that the SBA List has a credible First Amendment claim to permit it to go forward with a lawsuit, the ultimately goal of which would be to have the Ohio statute declared unconstitutional. However, the Court’s ruling, along with previous Supreme Court precedent on the First Amendment, seems to make it clear that the Court is suggesting that the statute should be viewed skeptically by lower courts, and that it would face a tough time if the case were to make it back to the Supreme Court for a decision on the merits.
Consider this from Justice Thomas’s opinion:
Respondents, echoing the Sixth Circuit, contend that SBA’s fears of enforcement are misplaced because SBA has not said it “‘plans to lie or recklessly disregard the veracity of its speech.'” … [But] SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations. Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law….
Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not “‘chimerical.'” Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA’s speech violated the false statement statute. Indeed future complainants may well “invoke the prior probable-cause finding to prove that SBA knowingly lied.”
The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows “any person” with knowledge of the purported violation to file a 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.
Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission “‘handles about 20 to 80 false statement complaints per year,'” and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. In fact, the specter of enforcement is so substantial that the owner of the billboard refused to display SBA’s message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from “imaginary or speculative.”
We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.” DeWine Brief 7. “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, “such a determination itself may be viewed [by the electorate] as a sanction by the State.”
Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case
Based on this, it seems hard to believe that the law itself would fare well on the merits.
As I noted when I’ve written about this case before, most recently when the case was getting set to be argued before the Court back in April, the dangers of a law such as this seem so readily apparent that it’s hard to see how it could pass First Amendment scrutiny. While there are certainly some circumstances where false statements during the course of a political campaign would give rise to civil claims for defamation or slander. However, that is a far different matter from the idea of a government commission such as the one in Ohio that is charged with the task of determining whether statements made during the course of a political campaign are true or false, and given the authority to impose criminal sanctions if a statement is indeed deemed to be false. The chilling effect of such a “truth commission” would seem to be readily apparent. More importantly, while the scope of the First Amendment is often a subject of contention and debate, one of the few areas where it is uncontested is the idea that a primary purpose of the amendment was to permit for as much free speech in the political sphere as possible. A law like this obviously goes against that principle and discourages people from speaking out during the course of a political campaign for fear that they might be dragged before a commission that could hold them to have committed a criminal act. For that reason, I would hope that this law is dealt with harshly when it is considered on the merits.
It may be some time before we hear about this case again. From here, the case will go all the way back to the District Court level for pre-trial proceedings and, eventually, trial. After that, one would expect and appeal to the Sixth Circuit by whomever happens to lose at the trial court level. Realistically, the earliest this case would be back before the Supreme Court would likely be the term that begins in October 2015.
Here’s the opinion: