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Supreme Court to Hear Anti-Choice Group’s ‘Right to Lie’ Case

Jessica Mason Pieklo

The Supreme Court will consider whether the Susan B. Anthony List can challenge an Ohio law that prohibits lying in campaign ads.

The Supreme Court agreed Friday to consider a challenge to an Ohio political speech law by anti-choice advocacy group the Susan B. Anthony List.

Ohio’s “false statements” law prohibits false attacks on political candidates, including untruthful and inaccurate representations of a candidate’s voting record. It was Ohio’s “false statements” law that prevented the SBA List in 2010 from putting up billboards accusing then-Rep. Steve Driehaus (D-OH), a self-identified “pro-life Democrat,” of voting for “taxpayer funding for abortion” because of his support of the Affordable Care Act.

Taxpayer funding of abortion is prohibited by federal law, and the Affordable Care Act requires insurers to segregate funds for abortion coverage under a separate, special set of rules.

The SBA List did not challenge the law to the Ohio Elections Commission, deciding instead to bring a lawsuit in federal court. The SBA List argued that the Ohio law violated their First Amendment political speech rights by unconstitutionally limiting their right to criticize elected officials. The group denied their claims against Driehaus were false, and claimed that fear of prosecution under the Ohio law deterred them from moving forward with their billboard campaign. Defenders of the law countered that there was no constitutional right to lie or mislead the public, and that the law was a reasonable speech restriction necessary in maintaining clean and fair elections. Both a lower court and the U.S. Court of Appeals for the Sixth Circuit agreed, rejecting the SBA List’s First Amendment challenge.

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In August, the group petitioned the Roberts Court to step in, asserting the Sixth Circuit’s decision “has assured perpetuation of a blatantly unlawful regime under which bureaucrats are the supreme fact-checkers for every political campaign—a regime that has, predictably, been routinely abused and will continue to be, absent this Court’s intervention.” On Friday, the Supreme Court granted that request.

“We are thrilled at the opportunity to have our arguments heard at the Supreme Court and hope that not only will SBA List’s First Amendment rights be affirmed, but those of all Americans,” said Marjorie Dannenfelser, president of the SBA List, in a statement. “The Ohio Election Commission statute demonstrates complete disregard for the Constitutional right of citizens to criticize their elected officials.”

“This lawsuit originated with the now ongoing problem of taxpayer funding of abortion in Obamacare. Driehaus was originally opposed to the Affordable Care Act because it did not contain specific language preventing the funding of abortion,” Dannenfelser continued. “That never changed and to this very day, Americans are still fighting the expansion of taxpayer funding of abortion brought about by the overhaul.”

But the Roberts Court will not decide whether or not the Ohio law is unconstitutional. Rather, it will only answer whether or not the SBA List has standing to bring its case, since it neither ran the billboard campaign against Driehaus nor faced prosecution under the law and further maintains that its statements against Driehaus were nonetheless true.

The Supreme Court will hear arguments in the case this spring with a decision issued by the end of June.

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