While the justices did not strike down the Ohio law, they sent a clear signal that a majority on the high court believes the law may violate the First Amendment to the Constitution, which guarantees freedom of speech.
“The target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond” to requests for information “in the crucial days leading up to an election,” wrote Justice Clarence Thomas, who authored the opinion.
Michael A. Carvin, an attorney for Susan B. Anthony List, called the decision “gratifying,” and vowed to quickly take the case before a federal judge in Cincinnati “to have this law invalidated so we can speak in the way the First Amendment intended.”
Dan Tierney, a spokesman for DeWine, said “as the matter now proceeds in the lower courts, the Ohio attorney general’s office has a duty and will continue to defend the constitutionality of the statute.”
But Tierney, acknowledging that DeWine himself argued in legal documents filed with the high court that the Ohio law violated the U.S. Constitution, said that DeWine “will also continue to make the courts aware of his significant First Amendment concerns on this issue.”
It means that when the suit is heard by a federal judge, DeWine’s office will be defending the law while DeWine himself will argue it is unconstitutional.
With their ruling, the justices invalidated a decision by a federal judge and the Cincinnati-based 6th U.S. Circuit Court of Appeals, which ruled that neither organization could show they had been harmed by the law.
Susan B. Anthony List had wanted to pay for a billboard advertisement during the 2010 campaign, accusing then-U.S. Rep Steve Driehaus, D-Cincinnati, of supporting taxpayer dollars to pay for abortions when he voted for the 2010 health-care law, known as Obamacare.
Faced with the threat of lawsuit from Driehaus’s attorney, the billboard owner refused to post the advertisement. Driehaus filed a complaint with the Ohio Elections Commission, which found “probable cause” that the advertisement violated the Ohio election law.
Driehaus dropped the complaint after being defeated for re-election by Republican Steve Chabot, R-Cincinnati. But Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes – known as COAST – sued in federal court, contending the law violates the U.S. Constitution.
Chabot represents Ohio’s 1st congressional district which covers all of Warren County and part of Hamilton County.
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.
But Thomas wrote that “commission proceedings are not a rare occurrence,” pointing out that the commission handled as many as 80 complaints every year. Thomas wrote that “the burdens of commission proceedings can impose on electoral speech are of particular concern here.”
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