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Susan B. Anthony List v. Driehaus: SCOTUS skeptical over Ohio law

Supreme Court justices seemed skeptical of an Ohio law barring knowingly false speech in political campaigns.
People wait in-line to enter the U.S. Supreme Court to hear oral arguments April 22, 2014 in Washington, DC.
People wait in-line to enter the U.S. Supreme Court to hear oral arguments April 22, 2014 in Washington, DC.

Supreme Court justices turned a skeptical eye towards an Ohio law banning knowingly false statements in political campaigns Tuesday with one justice adopting an analogy to the dystopian novel 1984 to describe the law's impact.

"The mere fact that a private individual can chill somebody's speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it," Justice Antonin Scalia told Ohio State Solicitor Eric Murphy. Scalia was adopting an analogy deployed earlier by Michael Carvin, the attorney representing the anti-abortion rights group Susan B. Anthony List, who said "Our constitutional claim here is the ministry of truth has no ability to judge our political speech as falsity." The Ministry of Truth is the part of the totalitarian government in 1984 responsible for state propaganda, ironically named because it produces politically expedient lies.

Experts believe the high court will rule on whether or not Susan B. Anthony List can challenge the law, not on whether the law itself is constitutional,  but Scalia wasn't the only justice whose distaste for the Ohio law seeped into an argument that was technically supposed to be about standing. In 2010, the anti-abortion rights group Susan B. Anthony List wanted to put up a billboard attacking Democratic Ohio Rep. Steve Driehaus's support for the Affordable Care Act as a vote for "taxpayer funded abortion." Public funds for abortion have been banned since the 1970s, and President Obama signed an executive order barring the Affordable Care Act from funding abortion. So, Driehaus filed a complaint with the state election commission, which found probable cause to believe the statement was false. 

Driehaus lost and the complaint was withdrawn, but since Susan B. Anthony List has every intention of running similar ads against Democrats in the future, the group is arguing the law is an infringement on their First Amendment rights. Civil liberties groups like the ACLU that support abortion rights and worry about the Ohio law's impact on political speech have backed Susan B. Anthony List's argument that they should be allowed to challenge the law. They fear that, should the high court side against the group, future challenges to laws that abridge speech would be harder to mount. 

Murphy argued that since there was no pending prosecution, the group shouldn't be allowed to challenge the law yet. Courts are supposed to only take on matters when someone has or is likely to be harmed by a law. 

"You're making it sound like the commission hears every political  statement out there," Murphy said in response to criticism of the law by Scalia. "But it has to be filed by a person, and only one person filed a complaint against the SBA this last time, and he is in Africa now. So I don't think he'll be filing complaints any time soon."

"He really lost, didn't he," Scalia noted to laughter in the courtroom.

Though some of the Democratic-appointed justices seemed to be more on-the-fence than their conservative counterparts, at least one of them, Justice Stephen Breyer, seemed ready to side with Susan B. Anthony List.  

"Why can't a person say, you know, there are things I want to say politically, and the Constitution says that the state does not have the right to abridge my speech, and I intend to say them. And if I say them, there's a serious risk that I will be had up before a commission and could be fined," Breyer said. "What's the harm? I can't speak; that's the harm." 
Attempting to tease out the contradictions of trying to prove a political argument true or false, Breyer asked Murphy if the commission would go after a group that called a politician a "murderer" for voting for legislation that lead to the death of cats. Murphy said "probably not."
Murphy made a valiant effort to defend the law, but the justices sympathies seemed to be with the challengers. While the court might not be unanimous in agreeing that Susan B. Anthony List has a right to challenge the law, a majority seemed willing to side with the anti-abortion rights group, and if it ever makes it to the high court on the merits, it's probably toast.