A majority of the Supreme Court justices Tuesday seemed to express reservations about Ohio’s election law banning false statements in election campaigns, a clear sign they will allow a legal challenge to the law to proceed before a federal judge in Cincinnati.
By doing so, the justices would hand a major victory to an anti-abortion organization in Cincinnati while simultaneously raising serious doubts that the law in Ohio and 15 other states may violate the First Amendment’s guarantee of freedom of speech.
“You’re not asking us to resolve the constitutional question,’’ Justice Antonin Scalia asked Michael Carvin, the Washington attorney representing Susan B. Antony List, the anti-abortion organization.
“All we’re trying for is our day in (district) court so that we can make this argument,’’ Carvin replied.
The dispute dates to the 2010 congressional elections when Susan B. Anthony List wanted to pay for a billboard advertisement charging that then-U.S. Rep. Steve Driehaus, D-Cincinnati, supported the use of taxpayer dollars to pay for abortions by voting for the 2010 health law.
When Driehaus’ attorney threatened to sue, the billboard owner declined to accept the Susan B. Anthony List advertisement. Driehaus filed a complaint with the Ohio Elections Commission, which found “probable cause” that the advertisement violated the law.
After being defeated by Republican Steve Chabot, Driehaus dropped the complaint. However, Susan B. Anthony List and a separate group — the Coalition Opposed to Additional Spending and Taxes — sued in federal court contending that the law violates the U.S. Constitution.
A federal judge and the Cincinnati-based 6th U.S. Circuit Court of Appeals rejected the lawsuits, ruling that neither organization could show it was harmed because the complaint was dropped and the elections commission did not refer the case to prosecutors.
But justice after justice made clear they did see potential harm in a law in which billboard operators might refuse to run an advertisement. At one point, Scalia mockingly referred to the state elections commission as the “Ministry of Truth,’’ a reference to George Orwell’s novel, 1984.
Justice Stephen G. Breyer asked, “Why can’t a person say … 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 if I say them, there is a serious risk that I will be (taken) before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm.’’
Approved by the legislature in 1974, the Ohio law prohibits anyone from making “a false statement concerning the voting record of a candidate or public official” or distributing information about an opponent that is known to be false with reckless disregard for the truth.
A candidate can file a complaint with the elections commission, which investigates.
State and court records indicate only four people were ever convicted under the law and not one served any time in jail. Those four convictions took place in 1985 in Geauga County and two were overturned by a state court of appeals.
No organization filed a legal brief declaring the Ohio law is constitutional, although Ohio Solicitor Eric Murphy found himself in the unusual position of defending the actions of the state elections commission even as his boss, Ohio Attorney General Mike DeWine, filed a separate legal brief declaring the law violates the U.S. Constitution.
Murphy asserted that the justices should uphold the lower court decisions because Susan B. Anthony List had “not established a credible threat of criminal prosecution and any other injury.’’
The only hint of support for the law came from Democrat David Pepper, who is challenging DeWine in November in the attorney general’s race. Pepper tweeted that “DeWine wants to get rid of OH’s law against recklessly false statements.’’
Pepper’s spokesman Pete Koltak said in March that DeWine is motivated by an elections commission finding against him nearly 40 years ago.