Constitution Daily

Smart conversation from the National Constitution Center

Supreme Court rules in "Politics and Lies" case

June 16, 2014 by Scott Bomboy


The Supreme Court said on Monday that two groups can attempt to challenge a Ohio state law that prohibits politicians and others from making false statements during political campaigns, under threat of jail or a fine.

University_at_Buffalo_voting_booth-450x300The case of Susan B. Anthony List v. Steven Driehaus generated a lot of national attention, and more than a few jokes, when it was argued in front of the Justices in April.

Link: Read the decision

“Believe it or not, it is a criminal offense in Ohio to make a knowingly or recklessly ‘false’ statement about a political candidate or ballot initiative,” said Michael A. Carvin, the attorney arguing the case in front of the Supreme Court in April.

The Supreme Court on Tuesday was focused on a more serious point in the case: The groups’ Article III standing under the Constitution to sue in court over their First Amendment rights.

“Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Appeals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met,” said Justice Clarence Thomas.

Podcast: P.J. O’Rourke on the SBA List case

The Supreme Court didn’t rule on the constitutionality of the Ohio law, which is called Ohio Revised Code Section 3517.21. It explicitly defines what is called “impermissible campaign speech.”

For now, the Susan B. Anthony List case heads back to the lower courts, to determine if there is a First Amendment argument against the Ohio law.

“Denying prompt judicial review would impose a substantial hardship on petitioners, 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,” Justice Thomas said in the decision.

The Ohio law says that impermissible campaign speech is defined as making false statements claiming a candidate has been indicted or convicted of crimes; making false statements that a candidate has a mental disorder; and making false statements concerning the voting record of a candidate or public official. In fact, there are at least 10 different ways a person can make a false statement, according to the law. In Ohio, a violation is a misdemeanor with a penalty of up to six months in jail and a $5,000 fine.

Ohio’s false-statement law has been a target for comedians and lawyers. It was a humor- and satire-laden brief filed in the case by the Cato Institute’s Ilya Shapiro and P.J. O’Rourke that made waves in legal circles when the case hit the Supreme Court.

Ohio attorney general Mike DeWine also filed briefs that supported his own case and

In 2010, during U.S. House race between then-Democratic Representative Steven Driehaus and a Republican opponent, the Susan B. Anthony List, an anti-abortion group, tried to start a billboard campaign accusing Driehaus of supporting taxpayer-funded abortions by voting for the Affordable Care Act.

Driehaus asked the Ohio Elections Commission to block the ads, saying his vote didn’t directly fund abortions and the SBA List violated the Ohio law. The billboards never went up after Driehaus’ lawyer threatened legal action. The commission agreed with Driehaus.

But the SBA List didn’t agree with the claim that Driehaus’ pro-Obamacare vote wasn’t linked to the funding and it added that the Ohio ruling violated its First Amendment free speech rights. A second group joined the SBA List in contesting the case, saying it was fearful of criticizing Driehaus for his Obamacare support.

A federal district court dismissed the case, ruling the two groups didn’t have standing to sue because they didn’t face a real prosecution threat under the Ohio law. The U.S. Court of Appeals for the Sixth Circuit agreed with the lower court.

While the Court’s ruling was focused on the two groups’ ability to sue, the case had gotten a lot of attention because of its First Amendment implications. At least 15 states have similar laws on the books, and two dozen groups friend of the court briefs in the case.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

Recent Stories On Constitution Daily

Podcast: P.J. O'Rourke on the Politics and Lies case

Supreme Court tracker: Two decision days this week

What happens when no one wins a presidential election?

Sign up for our email newsletter