Supreme Court: Anti-abortion group can challenge 'false statement' law

In a unanimous ruling, the Supreme Court backed the right of an antiabortion advocacy group to challenge an Ohio law banning false statements during an election campaign, citing threat to free speech.

Alex Brandon/AP/File
An American flag flies in front of the U.S. Supreme Court in Washington in this June 2012 file photo. The high court ruled unanimously on Monday to back the free-speech rights of abortion protesters during election season in Ohio. Justice Clarence Thomas wrote for the court.

The US Supreme Court on Monday ruled that an antiabortion advocacy group has demonstrated a severe enough injury to continue its legal challenge to an Ohio law prohibiting “false statements” during an election campaign.

In a unanimous decision, the high court said the group, Susan B. Anthony List, had demonstrated that it faced a substantial threat to its free speech rights from provisions of Ohio’s false statements law, including being forced to appear before a state commission and facing potential criminal prosecution.

A federal judge had dismissed the case. That decision was upheld by the Sixth US Circuit Court of Appeals.

In reversing the Sixth Circuit, the high court said that the advocacy group was entitled to mount a pre-enforcement challenge to the Ohio law that posed a credible threat of potential punishment sufficient to justify further legal proceedings.

“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 Clarence Thomas wrote for the court.

The case stems from an attempt by the antiabortion group to wage a media campaign in 2010 against then-Ohio Rep. Steven Driehaus (D).

The group wanted to place advertisements on billboards in Mr. Driehaus’s district proclaiming: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”

The ad was intended to draw attention to the congressman’s support for President Obama’s Patient Protection and Affordable Care Act and what the antiabortion group considered to be provisions enabling the use of public money for abortion.

Supporters of the ACA dispute the charge that it funds abortions.

In response to the planned ad campaign, Driehaus filed a complaint with the Ohio Elections Commission alleging that SBA List’s proposed billboards violated the prohibition on making false statements during election campaigns.

A commission panel voted 2 to 1 to find probable cause that the ads violated the law.

SBA List then filed suit in federal court, charging that the Ohio statute violated their free speech rights and created a chilling effect on political speech during campaign season.

The case was thrown out before the merits of the complaint were addressed. (In addition, Driehaus lost his reelection bid.)

In reaching its decision on Monday, the Supreme Court did not address the underlying merits of SBA List’s case. Instead, the court said that the implications for free speech were serious enough to warrant further action in the lower courts.

“Today’s decision by the court is a step toward victory for freedom of speech and the broad coalition of groups who have supported SBA List throughout this case,” said SBA List President Marjorie Dannenfelser.

“The truth or falsity of political speech should be judged by voters, not government bureaucrats,” she said in a statement.

Those on the other side of the abortion debate were less welcoming of the high court’s ruling.

“Groups that can’t win based off of the facts or the merit of their argument often resort to lying and deceiving the public. This now appears to be the primary strategy of the SBA List,” Ilyse Hogue, president of NARAL Pro-Choice America, said in a statement.

Other analysts saw the high court action as setting the stage for a potentially important test of First Amendment protections to engage in political speech without facing censorship and criminal liability.

“We are gratified that the Court today recognized the immense harm that can occur when individuals are required to put their liberty at risk in order to vindicate their free speech rights,” David Horowitz, executive director of Media Coalition, said in a statement.

“This decision affirms the principle that a person, organization or business should not have to risk prosecution to challenge the constitutionality of a law.”

David Cortman of Alliance Defending Freedom also praised the high court’s decision.

“The First Amendment forbids the government from acting as a ‘truth commission’ on matters of public debate,” he said in a statement. “The US Supreme Court has rightfully upheld the freedom of Americans to speak in accordance with their views by allowing them to challenge laws that silence them,” he said.

The case was Susan B. Anthony List v. Steven Driehaus (13-193).

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