The Supreme Court has made pretty clear that putting your money where your mouth is deserves broad protection as a form of free political speech. The justices are about to consider whether outright lying in a campaign deserves a similar First Amendment shield.
The court’s recent decisions easing the flow of generous campaign contributions already shifted the electoral landscape. If the court finds that even the most patently outrageous statements about candidates may not be barred by law, those two decisions combined could expand the rhetorical battlefield of the midterm elections and raise the attack ad volume as never before.
With Congress in the middle of its spring recess, few if any members are expected to attend the April 22 oral arguments. But they will all surely have their ears tuned for word about the decision, expected by the end of the term in June.
Groups at both ends of the ideological spectrum are challenging an Ohio law, on the books since the 1970s, that forbids candidates, issue groups or anyone else from knowingly or recklessly making false statements about someone on the ballot — whether the untruths are intended to help elect or defeat the candidate. Fifteen other states similarly criminalize “false” political statements, briefs in the case say, but this is the first constitutional challenge against one of those laws that’s made it to the Supreme Court. The dispute started during one of the hottest House races in the country in 2010 — a rematch in a swing district covering western Cincinnati and the adjacent suburbs between freshman Democrat Steve Driehaus and the Republican he’d ousted two years before, Steve Chabot.
A group organized to elect candidates opposed to abortion, the Susan B. Anthony List, sought to rent space on a billboard declaring “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” but the sign’s owner called off the deal after the congressman filed a complaint with the Ohio Elections Commission alleging the message violated the false statements law.
SBA List said it was on solid ground because the congressman had voted to enact the health care overhaul, which anti-abortion groups interpret as permitting tax dollars to be spent on the procedure. Even after President Barack Obama signed an executive order saying that insurance plans sold on the new health exchanges could not spend any of their federal subsidies on the vast majority of abortions, exceptions remained in cases of rape, incest or when the pregnant woman’s life was in danger.
Driehaus, who cultivated a socially conservative record, said in his legal brief that the “defamatory meaning” of the billboard was clear: to falsely portray him as “a hypocrite who abandoned his principles and his constituents.”
He dropped his complaint after losing that fall to Chabot, who still holds the seat. But SBA List, since joined by the American Civil Liberties Union as well as some tea-party-like organizations, filed a federal lawsuit alleging the Ohio law’s threat of prosecution was an unconstitutional infringement on free speech.
Government officials have no business seeking to arbitrate the truthiness of the charges and counter-charges that fly back and forth in advertisements, stump speeches and debate exchanges, SBA List's brief to the justices said. That’s because the process can too easily become “politicized, manipulated and abused, thereby causing profound harm to truthful speakers — and the entire democratic process.”
The plaintiffs are hoping to bolster their cause by likening the Ohio statute to a 2005 law that made it a federal crime to lie about receiving military honors or decorations. Two years ago, the justices voted 6-3 to strike down that "Stolen Valor Act" as a violation of the First Amendment.
But as is the case so often, the court has a wide opening to decide the case without addressing the big constitutional question. It could rule only on the preliminary procedural question of whether Susan B. Anthony List may press its arguments in the lower courts because of its fears about getting in trouble in the future, or has lost standing to sue because it’s no longer threatened with prosecution over the billboard.
If the justices are looking for guidance from the state of Ohio, they are going to find it — in contradictory stereo. State Attorney General Mike DeWine has taken the extraordinary step of producing arguments on both sides of the case.
One of his briefs says the law should be left alone on the narrow standing grounds. That argument is that the anti-abortion group didn’t see its free speech rights curbed because the Driehaus complaint went away, and there is no way to prove it’s going to run afoul of the statute by reviving the Obamacare-finances-abortion line of attack this year.
The other brief says the law should be struck down on constitutional grounds. Not only does it allow “the state’s legal machinery to be used extensively by private actors to gain political advantage,” that argument says, but the law “fails to provide adequate safeguards (including prompt judicial review) against the chilling of political speech.”
SCOTUSblog, a website that covers the Supreme Court exhaustively , says the last time something similar happened was in 1975, when the court was considering Buckley v. Valeo, its landmark campaign finance case. The Ford administration simultaneously argued for and against the constitutionality of the recently enacted campaign contribution and spending limits.
DeWine has been a fixture in Republican circles for more than three decades in Ohio and on Capitol Hill. He served four terms in the House, a term as lieutenant governor and then two terms in the Senate before losing in 2006 to Democrat Sherrod Brown. But he started a comeback with his election as attorney general in 2010. And, expecting he’ll win a second term this fall, at age 67, he’s already readying plans to run for governor in four years.
In other words, DeWine has been not only protected but also constrained by the political falsehoods statute as much as anyone. That may explain why he can’t make up his mind about what the high court should do before he runs his next race.