Supreme Court Takes First Amendment Case on Election Speech

On Jan. 10, the Supreme Court granted a petition seeking review of a First Amendment case involving political speech.

The case is Susan B. Anthony List v. Driehaus. Democrat Steven Driehaus (pictured) was a congressman representing the Cincinnati, Ohio, area. Susan B. Anthony List (SBAL) is a pro-life organization and wanted to run election ads against Driehaus for his voting in favor of Obamacare, asserting that Obamacare funds abortion. The ad read, “Shame on Steven Driehaus! Driehaus voted for taxpayer-funded abortion.”

Ohio has a law making it a crime to knowingly or recklessly make a false statement about a political candidate. Driehaus filed a complaint with the Ohio Election Commission which ruled that there was probable cause that the SBAL ad was a false statement.

Driehaus later lost his reelection bid to Republican Steve Chabot and so withdrew his complaint. However, SBAL decided to continue its defense by challenging the Ohio law.

SBAL sought to challenge the Ohio law as a violation of First Amendment free-speech rights, but the U.S. District Court for the Southern District of Ohio dismissed the case as unripe for litigation because the state election commission had not yet issued a final order penalizing SBAL, and because it was not certain that SBAL would again be subjected to this treatment. The U.S. Court of Appeals for the Sixth Circuit affirmed the district court.

The Supreme Court has agreed to hear the case. SBAL is being represented by Jones Day partner Michael Carvin, an accomplished Supreme Court litigator who specializes in constitutional issues. Arguments will be scheduled for April, with a decision before July.

Ken Klukowski is senior legal analyst for Breitbart News and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.