Top Court Allows Challenge to Law Punishing Campaign Lies

Advocacy groups can challenge an Ohio law that makes it a crime to spread false information about a candidate during a political campaign, the U.S. Supreme Court ruled.

The justices today unanimously said the Susan B. Anthony List, an anti-abortion group, could sue over the law even though it isn’t currently facing a complaint before the Ohio Elections Commission. The court didn’t directly address whether the law complies with the constitutional free-speech guarantee.

Writing for the court, Justice Clarence Thomas said the group faced a credible threat of future enforcement. Barring the suit would mean “forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly commission proceedings and criminal prosecution on the other.”

The case grew out of plans by the Susan B. Anthony List to put up billboards during the 2010 U.S. congressional campaign accusing then-Representative Steve Driehaus of supporting taxpayer-funded abortion because he voted for President Barack Obama’s health-care law.

Driehaus filed a complaint with the Ohio Elections Commission, accusing the group of making false statements. The billboard company then refused to put up the ad. Driehaus lost his re-election bid and then withdrew his complaint.

Mass E-Mail

A second organization, the Coalition Opposed to Additional Spending and Taxes, joined the Susan B. Anthony List in pressing the lawsuit. That group said it refrained from disseminating a mass e-mail about Driehaus because it feared the prospect that it would face a legal complaint.

The Ohio law found little support as the case reached the Supreme Court, with groups as diverse as the Republican National Committee and the American Civil Liberties Union arguing that the challenge should be allowed to go forward.

Even the Ohio official tasked with defending the measure, Attorney General Mike DeWine, took an unusual middling position. Using government lawyers, he filed a brief urging the court to throw out the Susan B. Anthony List challenge. DeWine then retained outside lawyers to file a second brief that said the law itself raised serious constitutional concerns.

The case is Susan B. Anthony List v. Driehaus, 13-193.

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