Everybody lies, particularly in political campaigns, says the cynical voter. But should laws restricting speech challenged as untruthful get First Amendment scrutiny?
A national pro-life advocacy group would answer yes, and is asking the U.S. Supreme Court to clear the way for a constitutional challenge to an Ohio law criminalizing false statements in political campaigns.
"I've been involved in a number of Ohio controversies where this law played a role directly or indirectly," said the group's counsel, veteran high court litigator Michael Carvin of Jones Day. "I've always believed it was blatantly unconstitutional. I was happy to get the opportunity to handle the case."
The petition for review—Susan B. Anthony List v. Driehaus—stems from the 2010 election season when the Susan B. Anthony List went after incumbent U.S. Rep. Steven Driehaus, D-Ohio, for his vote in favor of the new health care insurance law, the Patient Protection and Affordable Care Act.
The organization wanted to erect a billboard in Driehaus' district stating: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Driehaus responded by filing a complaint with the Ohio Elections Commission alleging that the proposed billboard violated the state law making 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."
Driehaus contended that the List's statement was false because the health care law, while subsidizing insurers of low-income families with federal dollars, required that abortion be paid for from a separate account funded solely by enrollees. His complaint included a counterclaim for defamation, charging that the List "defamed Mr. Driehaus by impugning his professional reputation as a pro-life Member of Congress and by falsely characterizing his performance and conduct in the office he held." The List insisted its statement was true.
A panel of the state commission found probable cause for the full commission to hear the complaint. Both parties subsequently agreed to postpone the commission hearing until after the election, which Driehaus lost. The congressman then withdrew his complaint.
While the complaint was pending, the List filed a federal suit challenging the Ohio law on First Amendment grounds. The Coalition Opposed to Additional Spending and Taxes (COAST) also filed a First Amendment challenge to the law, arguing that it, too, wanted to criticize Driehaus but because of the complaint against the List was afraid to do so—in other words, that its speech had been chilled by the law. COAST is also a party to the List's petition in the Supreme Court.
The district court dismissed both lawsuits and the U.S. Court of Appeals for the Sixth Circuit affirmed. The appellate panel relied on circuit precedent holding that neither past enforcement of a speech restriction nor chill from that enforcement is enough to prove "an imminent threat of future prosecution."
In his Supreme Court petition, Carvin notes that nearly one-third of the states have laws prohibiting false statements during political campaigns and many impose criminal sanctions for violations. Those laws, he argues, do exactly what the justices warned against in their 2012 decision in U.S. v. Alvarez, striking down the Stolen Valor Act. They insert "bureaucrats and judges into political debates and charging them with separating truth from oft-alleged campaign 'lies,' " he writes. "Such statutes are almost certainly unconstitutional, yet they play a troubling, harassing role in every political campaign in those states."
The Sixth Circuit, he said in an interview, applied a "bizarre theory" to bar the courthouse door to challenges to the Ohio law.
"The irony here is the Sixth Circuit immunized, by a completely wrong-headed view of justiciability, a blatantly unconstitutional law from attack," he argued. "You have to be first prosecuted and convicted before you can challenge the law. The Supreme Court and commonsense tell you it's the threat of prosecution that gives you standing. It has chilled your speech. If you wait until you've been prosecuted, you've gambled your liberty."
Carvin said the Supreme Court has repeatedly found that a credible threat of prosecution entitles a speaker to pre-enforcement judicial review, and that also has been the position of seven circuits. He notes that there is a split in the circuits: the Sixth Circuit ruling is contrary to the Eighth Circuit's decision in 281 Care Committee v. Arneson, which allowed three grass-roots advocacy groups to challenge Minnesota's false-statement law.
And he argues there is a need for the Supreme Court to get involved because the Ohio law is not moribund. The elections commission, he said, handles about 20 to 80 false-statement complaints annually, everything from whether a congresswoman's receipt of money from a Turkish political action committee is blood money given the Armenian genocide to whether a city council member had a habit of telling voters one thing and then doing another.
A 2012 story in Cleveland’s The Plain Dealer noted that the Ohio commission heard 176 complaints during the previous three years and found violations in 14, but only one fine had been levied in those three years.
However, even one fine is too many if a law is unconstitutional, according to the law's opponents.
Without Supreme Court review, Carvin argues, "There is no solution to the Catch-22 created by the Sixth Circuit's approach, and no way to shut down—or even obtain judicial review on the merits of—the unconstitutional regime under which every election in battleground Ohio and at least 15 other states is now conducted."
Contact Marcia Coyle at email@example.com.