Court critical of Ohio law punishing campaign lies

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WASHINGTON (AP) — The Supreme Court appears to be highly
skeptical of laws that try to police false statements during political
campaigns, raising doubts about the viability of such laws in more than
15 states.
Justices expressed those concerns early and often
Tuesday during arguments in a case challenging an Ohio law that bars
people from recklessly making false statements about candidates seeking
elective office.
The case has attracted widespread attention, with
both liberal and conservative groups saying the law tramples on the
time-honored, if dubious, tradition of political mudslinging. Critics
say free speech demands wide-open debate during political campaigns,
including protection for negative speech that may sometimes twist the
facts.
The high court is not expected to rule directly on the
constitutional issue because the current question before the justices is
only a preliminary one: Can you challenge the law right away, or do you
have to wait until the state finds you guilty of lying?
But the
justices couldn’t resist going after the law itself, pointing out that
the mere prospect of being hauled in front of state officials to explain
comments made in the heat of an election has a chilling effect on
speech.
"What’s the harm?" Justice Stephen Breyer asked Eric Murphy, attorney for the state of Ohio.
"I can’t speak, that’s the harm."
Justice
Anthony Kennedy said there’s "a serious First Amendment concern with a
state law that requires you to come before a commission to justify what
you are going to say."
The case began during the 2010 election
when a national anti-abortion group, the Susan B. Anthony List, planned
to put up billboards accusing then-Rep. Steve Driehaus of supporting
taxpayer-funded abortion because he voted for President Barack Obama’s
new health care law. Driehaus, a Democrat who opposes abortion, claimed
the group’s billboard ads distorted the truth and therefore violated the
false speech law.
Driehaus filed a complaint with the Ohio
Elections Commission, an action which prompted the billboard owner to
decline posting the ads. The commission found probable cause that the
ads violated the law, but Driehaus later withdrew his complaint after
losing his re-election campaign.
The Susan B. Anthony List then
challenged the state law as unconstitutional, but a federal judge said
the group didn’t have the right to sue because it hadn’t yet suffered
actual harm. The 6th U.S. Circuit Court of Appeals in Cincinnati agreed.
Murphy
argued that the Susan B. Anthony List has not shown a credible threat
of harm because the Driehaus case was ultimately dismissed before it was
referred to a prosecutor.
But Justice Elena Kagan wondered why a
probable cause determination didn’t count as harm. For the average
voter, "they think probable cause means you probably lied," she said.
Chief
Justice Roberts pointed out that third parties such as TV stations or
billboard owners are going to be intimidated by the law, preventing a
group from getting its message out.
"The slightest whiff of this is going to be legal trouble," Roberts said.
Justice
Antonin Scalia said the Susan B. Anthony List intends to make the same
charges against other Democrats in the next election. He said the harm
is that the group fears being dragged before the "Ministry of Truth" for
similar proceedings, referring to the government propaganda office in
George Orwell’s novel "Nineteen Eighty-Four."
At one point, Murphy
reminded the justices that they were not there to debate the merits of
the law, just the question of standing. But Breyer said the merits
discussion is meant to suggest "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."
Michael Carvin, attorney for
the Susan B. Anthony List, suggested that election speech has "an
extraordinarily short shelf life" and a group accused of false speech
will never be able to go through the entire process of being accused of a
crime and exonerated before the election is over.
More than 500
false statement claims have been brought under the Ohio law between 2001
and 2010, Murphy told the justices. Only five cases have been referred
to a prosecutor, and of those, three resulted in plea agreements.
"So
you have a system that goes on and on, year after year, where arguably
there’s a great chilling of core First Amendment speech, and yet you’re
saying that basically you can’t get into federal court," Justice Samuel
Alito said.
Other states with similar laws include Alaska,
Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota,
Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, West
Virginia and Wisconsin.
The case is Susan B. Anthony List v. Driehaus, 13-193. A ruling is expected by late June.
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Follow Sam Hananel on Twitter at http://twitter.com/SamHananelAP
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