Susan B. Anthony List (SBA), an anti-abortion group, wanted to run a billboard claiming that former Rep. Steve Driehaus (D-OH) “voted FOR taxpayer-funded abortion.” But their proposed billboard did not tell the truth. The basis for SBA’s allegation was that the Affordable Care Act, which Driehaus supported, somehow authorized funding for abortions. But this is simply untrue. Not only does the federal Hyde Amendment forbid federal funding of abortion, but Obamacare also contains two additional provisions limiting abortion coverage. It permits each state to forbid health plans sold on the Obamacare exchange in their state from covering abortion entirely, and it requires states that do allow these plans to cover abortion to separate out federal funding to ensure that not one penny of it goes to fund abortion.
So SBA was either lying when they made this allegation against Driehaus, or they did not understand how the Affordable Care Act works.
The deceptive billboards attacking Driehaus, however, never ran. After Driehaus learned of the false attack Susan B. Anthony List planned to levy against him, he threatened legal action under an Ohio law that makes it a crime to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not.” Facing the threat of criminal sanctions — including up to six months in prison — the company that owned the billboards refused to display SBA’s inaccurate message.
These events are the setup for a difficult First Amendment case that will likely make its way through the courts in the coming months and years — and the Supreme Court offered a brief taste of what’s at stake in this case in a unanimous opinion handed down Monday morning.
It is well established that defamation is not protected by the Constitution. That is, Susan B. Anthony List does not have a constitutional right to make a false statement about a public figure like Driehaus “with knowledge that [their statement] was false or with reckless disregard of whether it was false or not.” If Driehaus had sued SBA for defamation, he very well may have won.
But Ohio law does far more than allow victims of defamation to sue the people who spread falsehoods about them. It actually makes defamatory statements against political candidates a crime. Moreover, it uses a complex process involving hearings before the Ohio Elections Commission to determine whether to refer speakers who allegedly make defamatory statements about candidates for criminal prosecution. Within two days of a complaint, this commission can issue a finding that “there is probable cause to believe” that a speaker broke the state law. Ten days later, that speaker can be forced to defend itself in a hearing before the full commission.
As Justice Clarence Thomas explains in his opinion for the unanimous Court, this process can have a significant chilling effect on speakers who, unlike Susan B. Anthony List, are telling the truth.
As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.” “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, “such a determination itself may be viewed [by the electorate] as a sanction by the State.”
Moreover, even setting these concerns aside, the Ohio statute raises an even more fundamental question: do we really believe that people should be thrown in jail because they say something false in the heat of a political race? Should Mitt Romney be jailed, for example, for falsely claiming that it was possible to achieve the goals of his own tax plan without raising taxes on the middle class? Or should President Obama face a criminal investigation because he made statements about his health plan that later proved untrue? In most cases, First Amendment law presumes that, in the words of Justice Louis Brandeis, “the fitting remedy for evil counsels is good ones.” And this is especially true in a hotly contested political campaign where the victim of a false attack has the resources to respond with the truth.
(Admittedly, a candidate may not be able to respond effectively to false attacks in races where well-financed interest groups can simply overwhelm a candidate’s ability to convey his or her message, but the obvious solution to this problem is to overrule the Supreme Court’s Citizens United decision and other cases allowing major donors to corrupt democracy, not to allow people to be thrown in jail for their words.)
Monday’s decision in Susan B. Anthony List v. Driehaus only hints at the fraught legal questions raised by a law criminalizing defamation against political candidates. The Supreme Court held only that SBA has the legal right to challenge the Ohio law even though they have not actually been prosecuted for violating it — it did not rule on whether the Ohio law itself is constitutional. In holding that SBA can indeed challenge this law, the Court reaffirmed a 1974 decision establishing that “it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”
But the more important question is whether Ohio’s law can continue to exist in the same country as the First Amendment. Give the risk of malicious complaints and the possibility that these complaints can be used strategically to drain a political actor’s coffers at the height of a political campaign — not to mention the chilling effect caused by the threat of criminal sanctions — Ohio’s law is difficult to defend. Susan B. Anthony List did not tell the truth when they went after Congressman Driehaus, and there are constitutional ways to sanction them if they told an intentional lie.
But the Ohio law will do far more than simply sanction bad actors, it will almost certainly quiet truth-tellers as well.