Justices Skeptical of Ohio's 'Ministry of Truth'

Obamacare, abortion, and political censorship were front and center today at the Supreme Court as the justices heard oral argument in a case involving an Ohio law that makes it a crime to “make a false statement concerning the voting record of a candidate or public official” during an election campaign. The Justices’ questions raised serious doubts about the constitutionality of the Ohio law and similar statutes in more than fifteen states.

The case, Susan B. Anthony List v. Driehaus, arose during the failed 2010 reelection campaign of Congressman Steven Driehaus of Ohio (D), when pro-life organization Susan B. Anthony List (SBAL) announced plans to put up billboards proclaiming “Shame on Steve Driehaus!  Driehaus voted FOR taxpayer-funded abortion.” Driehaus responded by filing a complaint with the Ohio Elections Commission under the Ohio law. Although the billboards never went up–the billboard company backed down when Driehaus’ lawyer threatened to sue–the Commission launched an investigation and, in a preliminary vote, sided with Driehaus, ruling that there was probable cause that the SBAL ad was a false statement.

Before any criminal prosecution of SBAL could go forward, Driehaus lost his reelection bid and withdrew his complaint. However, knowing that it could face prosecution for future advertisements, SBAL filed suit in federal court, seeking to strike down Ohio’s law as a violation of the First Amendment guarantee of free speech.

U.S. District Court Judge Timothy Black, an Obama appointee, dismissed SBAL’s case and a case filed by a similarly situated group on procedural grounds, never reaching the First Amendment issue. Black ruled that the case was not ripe–that is, ready for decision–given that the Elections Commission had never issued a final order against SBAL and concerns about future advertisements were speculative. After Black was affirmed by U.S. Court of Appeals for the Sixth Circuit, SBAL petitioned the Supreme Court for review and the justices agreed to take the case.

In an early sign of which way oral argument would go today, twenty amicus (i.e., “friend of the court”) briefs were filed with the Supreme Court in support of SBAL’s position, while not a single amicus brief was filed on Ohio’s side. The briefs supporting SBAL came from all corners of the political spectrum, including conservative groups such as Citizens United, liberal groups like the American Civil Liberties Union, and less ideological groups like the American Booksellers Association and First Amendment Lawyers Association.

The legal question that was formally before the Court today is only a preliminary one: did SBAL suffer enough harm or face a credible enough threat of prosecution to challenge the law in court? However, the case is really about much more–the power of states and the federal government to police political speech and the potential for such laws to chill speech or be abused by government officials who want to silence their critics. It’s no wonder that the justices and the parties’ attorneys struggled today to keep their focus on the narrower question of when legal challenges to restrictions on political speech can proceed.

Defending the challenged law today was Ohio Solicitor Eric Murphy, who was making his first appearance before the Court. From the outset he faced a hurdle–his boss, Ohio Attorney General Mike DeWine said in an amicus brief the law may well be unconstitutional–and things only went downhill from there.

Murphy began by arguing that “The Court should affirm the Sixth Circuit’s judgment in this case because [the plaintiffs] have not established a credible threat of criminal prosecution” notwithstanding the Commission’s finding of probable cause. But the justices–even the liberal ones whose votes Ohio would need to win–did not seem to buy the argument.  Justice Elena Kagan pointed out that voters “think probable cause means you probably lied … we don’t even need the prosecution to serve as the relevant harm.” Justice Stephen Breyer reminded Murphy that “there are real people who would really like to speak in an election campaign. And if they feel they can’t, they are really being hurt.” And Justice Ruth Bader Ginsburg noted that just being “brought before the commission … is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission.”

Justice Antonin Scalia pounded home the point that SBAL’s legal basis for pursuing its lawsuit rests not just on the harm done through the Commission’s finding about the Driehaus complaint:

[SBAL is] complaining about having to be dragged through this same this same proceeding next time in the midst of an election campaign. … Their organization is not an anti-Driehaus [group] … They are about opposition to the abortion funding portion of the Affordable Care Act and they’re going to make the same… contentions against anybody else who runs for office who has voted for that Act.

Murphy seemed a poor match for renowned Supreme Court litigator Michael Carvin, who represented the plaintiffs before the Court today. Carvin emphasized that this case involves “election speech … [so] it’s obviously the core of the First Amendment” and effectively attacked “Mr. Murphy’s attempt to downplay the probable cause finding.” Carvin pointed out that the harm suffered by SBAL at the hands of what he dubbed Ohio’s “Ministry of Truth” is very real:

Once the probable cause determination comes down, you have all of these kinds of subpoenas and very intrusive discovery of the sort you had in our case where they ask for our communications with everybody on the right wing of the political aisle, where we have to reveal our internal communications as well as those of others.

Carvin went on to argue that the ripeness standard Murphy wants the Court to affirm would make it almost impossible to challenge laws like Ohio’s no matter how unconstitutional they are:

“[I]f you adopt what we consider the absurdly high straitjacket that the Sixth Circuit imposed on speakers … you will you will have put us in this Catch 22 endless cycle of suppressing speech, deterring speech, chilling speech, but never being able to get to a court to adjudicate our First Amendment [rights].”

Carvin concluded his augment to the justices by eloquently asking them “to lift this yoke so that we can become full participants in the next election cycle.”

The Obama administration, an amicus in this case, was granted the opportunity to participate in today’s oral argument. Assistant U.S. Solicitor General Eric Feigin spoke on behalf of the United States, telling the Court “We think that the probable cause finding and the fact that [the plaintiffs] want to repeat essentially the speech that was made earlier … [means their] First Amendment challenges are ripe.”

With the possible exception of Justice Sonia Sotomayor, a clear majority of the justices appeared to agree with this position today. This near unanimity is somewhat surprising. However, what is really surprising is that at least six of the nine justices seemed to believe that, even without the Elections Commission’s probable cause finding, the looming threat of being hauled before the Commission constitutes enough harm to overcome ripeness concerns.  

Said Kagan:

“Susan Anthony would know that it’s going to be speaking about a very controversial subject in which some people will think … it’s lying, and that there’s a very good chance that somebody is going to bring this to the Commission. So that would suggest that they have standing even at that moment before the initial probable cause determination is made.”

Breyer echoed Kagan’s concerns, asking “Why can’t a person say … there are things I want to say politically … And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. … why isn’t that end of the matter?” Breyer clearly believes that alone is enough for SBAL to proceed with its suit, which is probably why he appeared to virtually assume that Ohio would be the loser in today’s case when he asked Murphy “So if you lose on this procedural matter, how quickly can you get this decided? I mean, there are elections coming up. People would like to know. They want to know what they’re supposed to say.”

Breyer’s assumption is almost surely correct. While it is improbable that the Court will go beyond the ripeness question before it to rule that the Ohio law violates the First Amendment, the justices will very likely hand SBAL the only thing it’s asking for – the right to proceed with its lawsuit. That will mean a remand to the lower courts to determine the constitutionality of the law.  But more broadly, it will strengthen the protection of political speech by making it easier for plaintiffs to challenge laws restricting such speech.

A decision is expected by the end of June, but the larger debate about attempts to silence or censor controversial ads like the SBAL billboards will continue long after the Supreme Court decides this case. SBAL is currently running billboards identical to the Ohio one in this year’s Senate races, substituting Democrat Senators Mark Pryor, Kay Hagan, and Mary Landrieu for Congressman Driehaus.

Mr. Levey is a constitutional law attorney and president of the Committee for Justice. Follow him on Twitter at @Curt_Levey.