Political speech laws have come into question after today’s Supreme Court decision on Susan B. Anthony List v. Driehaus, which dealt with an Ohio law prohibiting false speech in campaign ads. While some say the SCOTUS decision promotes the “right to lie,” the ruling only addresses the right to pursue a First Amendment challenge in cases where the plaintiff had not yet been punished for false speech.
In 2010, SBA List attempted to post a billboard stating that then Democrat representative Steven Driehaus supported taxpayer funded abortions because he voted in favor of the Affordable Care Act, even though ACA requires that health care providers allocate separate funds for abortion procedures. Driehaus filed a complaint with the Elections Commission, and they found that the advertisement satisfied the Ohio false speech law, but the complaint was later dropped and never eventually lead to any charges against the SBA List.
But the Susan B. Anthony List sued, challenging the law under the argument that the organization believed their advertisement to be true. The U.S. Court of Appeals for the Sixth Circuit ruled that SBA List did not meet requirements for a review of the law since they had not been prosecuted and did not prove that they would in the future. The U.S. Supreme Court overturned the decision, ruling that the lower courts hear SBA List’s case.
As Rick Hasen, Chancellor's Professor of Law and Political Science at University of California Irvine, wrote on his blog at the beginning of the case, “I expect that the Supreme Court will not reach the merits of the constitutionality of Ohio’s false speech law, either on its face or as applied to the Susan B. Anthony group. That would be left to the lower courts with a possible return trip to the Supreme Court in the future.”
However, those with greater concerns, like Senior Legal Analyst of RH Reality Check Jessica Pieklo, argue that SBA List and plaintiffs in other anti-abortion cases, like Sebelius v. Hobby Lobby, ultimately want a “First Amendment right to lie.”
“And here, it doesn’t matter that the SBA List can’t show that the Ohio law actually chilled their speech by preventing them from running the billboards. What matters, they claim, is their reasonable belief that it would,” Pieklo wrote.
Still, the U.S. Supreme Court ruled Monday that SBA List has a legal standing to challenge the Ohio false speech law. Whether that means the lower courts will find the challenge valid or not remains to be seen.
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