In a unanimous decision Monday, the U.S. Supreme Court ruled that the conservative anti-choice advocacy group the Susan B. Anthony List can proceed with a challenge to an Ohio law prohibiting “false” political speech. The ruling did not decide whether Ohio’s law is constitutional or not, but it does set the stage for the Roberts Court to eventually take up the issue of whether the First Amendment protects a right to lie in elections.
At issue in the case is Ohio’s “false statements” law, which makes it a crime during a political campaign to make a false statement about the voting record of a candidate or public official and makes it illegal to disseminate any false statements about a candidate, either knowingly or recklessly. Specifically: At what point does the threat alone of enforcing such a law create standing to challenge the law? Under the law, if a person files a complaint with the Ohio Elections Commissions claiming a violation, commission members hold a hearing to determine if probable cause exists. If the commission finds probable cause, then they must hold another hearing on the merits of the complaint. The statute authorizes the commission to subpoena documents and witness testimony, and the hearing itself acts as a mini-trial. If the commission determines by “clear and convincing evidence” that a party has violated the false statements law, the commission can either refer the matter to county prosecutors or simply issue a reprimand itself. Violation of the statute is a first-degree misdemeanor punishable by up to six months in prison, a fine of $5,000, or both. A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of voter disenfranchisement.
It was Ohio’s “false statements” law that the SBA List claims prevented the organization 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 he supported the Affordable Care Act (ACA). During the 2010 election cycle, the SBA List targeted a number of Democratic candidates who voted in favor of the Affordable Care Act, claiming the law provides taxpayer funding of abortion despite the fact that federal law explicitly bans it. Among those members targeted was then-Congressman Steve Driehaus. SBA List wanted to display a billboard in Driehaus’ district that read, “Shame on Steve Driehaus! Driehaus voted FOR tax-payer funded abortion.” However, taxpayer funding of abortion is prohibited by federal law, and the Affordable Care Act requires any private health insurers in state exchanges that do offer abortion coverage to segregate funds for abortion coverage under a separate, special set of rules.
Driehaus filed a complaint with the Ohio Elections Commission, alleging the SBA List violated the state’s false statements law by stating he had voted for “taxpayer-funded abortion.” Because the proposed ad and Driehaus’ complaint were so close to the election, the commission panel held an expedited hearing and voted 2-1 to find probable cause that a violation had been committed. The full commission set a hearing date for ten business days later. For that hearing, Driehaus’ attorney scheduled depositions of three SBA List employees as well as other individuals affiliated with similar advocacy organizations, in part to determine who was supporting the attack ad. But before the hearing, the SBA List filed suit in federal court, seeking an injunction and a declaration that the Ohio false statements law violated their First Amendment free speech rights. The lower court stayed the commission’s hearing, and the SBA List and Driehaus agreed to postpone the full commission hearing until after the election.
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Driehaus ended up losing his re-election bid and withdrew his complaint against the SBA List. The commission proceedings were terminated, but instead of ending the matter, the SBA List amended its complaint in the federal court action and pressed ahead.
Meanwhile, another advocacy organization, the Coalition Opposed to Additional Spending and Taxes (COAST), filed a lawsuit challenging the Ohio law. According to COAST’s complaint, they too wanted to send out campaign materials criticizing Driehaus’ vote for the ACA as a vote “to fund abortions with tax dollars” but didn’t because the commission was proceeding against the SBA List.
The lower court dismissed both suits, deciding that neither organization had shown a concrete enough injury to justify granting them standing to challenge the law, nor were their claims “ripe,” or ready, for the courts to review. The U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal on ripeness grounds, but the Roberts Court disagreed and reversed the Sixth Circuit decision, holding that the SBA List had shown enough of an “injury in fact” to proceed with its challenge (more on that in a moment), and sending the case back to the lower courts for now.
Like many procedural rulings, Monday’s decision is complicated and more significant than might be first apparent. Federal courts require what is known as an “injury in fact,” which means a possible plaintiff has to suffer some actual, identifiable “harm” before they can bring a lawsuit. Federal courts have spent decades defining this “injury-in-fact” requirement to include evidence that it is “concrete” and “particularized” and “actual or imminent.” The “injury-in-fact” requirement comes up frequently in cases where an individual faces threat of prosecution under a law. In those cases, it’s up to the courts to determine at what point in time the threat of enforcement is enough to let a plaintiff move forward and challenge that law. In First Amendment terms, this enforcement is often referred to as “chilling” speech or other First Amendment activity. In this case, the Roberts Court determined there was a credible enough threat of enforcement, coupled with the additional threat of possible criminal proceedings should the commission have ordered them, that the lower court should have let the challenge proceed.
That conclusion seems straightforward enough, but as is often the case when the Supreme Court considers abortion rights cases, there’s more. In order to conclude that the SBA List and COAST made at least an initial showing that they had standing to bring this case, the Roberts Court relied on the probable cause determination by the Ohio Elections Commission to find that the threat of prosecution was enough to allow the SBA List to challenge the law in federal court. But that initial probable cause determination depended on the clearly false “taxpayer-funded abortion” statement, something the Roberts Court argues is “arguably proscribed” by the statute. The SBA List’s defense was, and continues to be, that it doesn’t believe those statements to be false.
The Roberts Court specifically did not rule on whether or not the SBA List’s statements were intentionally and recklessly false, and because the elections commission complaint was dismissed without a full hearing there’s no testimony developed to test the veracity of the SBA List’s “truth” defense. Presumably that will now happen at some point in the lower court proceedings. But there’s a definite pattern, and one that should worry reproductive rights advocates when it comes to the Roberts Court.
Susan B. Anthony v. Driehaus is just one of a list of cases this term in which the culture wars are being fought as First Amendment challenges. In McCullen v. Coakley, the anti-choice right wants a First Amendment right to harass patients entering and exiting reproductive health-care facilities. In Hobby Lobby and Conestoga Wood Specialties, they want corporations to have a First Amendment right to exercise religious rights as a means to deny employees access to comprehensive insurance care that includes contraception. And in this case, they want, ultimately, a First Amendment right to lie about the law. It’s no surprise then that a case testing the limits of state-level campaign protections would be teed up by the right as one involving abortion politics, health-care reform, and the right’s favorite Trojan horse, taxpayer funding for abortion.
In each of these cases, the anti-choice right insists the actual facts of a particular issue do not matter, as much as their reasonable belief of those facts do, and today’s opinion shows hints that the Roberts Court is more than willing to defer to those “reasonable” beliefs.
“SBA’s insistence that the allegations in the 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,” the Court wrote. “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.”
There’s a lot going on in this statement, and it deserves some unpacking. It’s clear the Court is concerned with statewide elections commissions stamping out political debate, a concern that is entirely reasonable. But by refusing to consider the issue of whether or not what the SBA List said was true when analyzing the proceedings at the Elections Commission, and then acknowledging that there’s “every reason to think” more complaints will follow, the Roberts Court engages in some selective storytelling here, and it’s selective storytelling that takes this case beyond a purely constitutional decision and into a larger political one. Why would the Roberts Court believe there will be more election complaints filed in a case like this? Is it because the state-level election commissions are out-of-control fascist bodies stamping out political dissent? Or is it because the anti-choice right refuses to accept as truth statements of fact that undercut their political agenda?
The result of Monday’s decision is to leave to the lower court the issue of whether or not Ohio’s law is constitutional. So far, the courts have split on whether to uphold these kinds of “false statements” laws; last term the Roberts Court struck the Stolen Valor Act, saying that the First Amendment protects a person’s right to lie, even if that person is lying about awards and medals won through military service. Which is to say, the issue of truth and lies in election speech is far from over, and if the Court’s opinion today is any indication and now more than ever it is incumbent on all reproductive rights advocates to correct every misstatement promoted by the right. Because if we don’t, there’s no guarantee the courts will either.