Court to weigh challenge to Ohio ban on campaign lies

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WASHINGTON (AP) — Negative campaigning and mudslinging
may be a fact of life in American politics, but can false accusations
made in the heat of an election be punished as a crime?
That
debate makes its way to the Supreme Court next week as the justices
consider a challenge to an Ohio law that bars false statements about
political candidates during a campaign. The case has attracted national
attention, with groups across the political spectrum criticizing the law
as a restriction on the First Amendment right to free speech.
Even
Ohio’s attorney general, Republican Mike DeWine, says he has serious
concerns about the law. His office filed two briefs in the case, one
from staff lawyers obligated to defend the state and another expressing
DeWine’s personal view that the law "may chill constitutionally
protected political speech."
"The thing we see time and time again
in political campaigns is that candidates use the law to game the
system by filing a complaint," DeWine said in an interview with The
Associated Press.
In an attempt at humor, satirist P.J. O’Rourke
and the libertarian Cato Institute filed a widely circulated brief
ridiculing the law and defending political smear tactics as a
cornerstone of American democracy.
O’Rourke’s brief celebrates a
history of dubious campaign remarks including President Richard Nixon’s
"I am not a crook," President George H.W. Bush’s "Read my lips: no new
taxes!" and President Barack Obama’s "If you like your health care plan,
you can keep it."
The Ohio law makes it illegal to knowingly or
recklessly make false statements about a candidate during an election.
The high court is not expected to rule directly on the constitutional
issue, instead focusing on the narrower question of whether the law can
be challenged before it is actually enforced. The outcome could affect
similar laws in at least 15 states.
The case began during the 2010
election, when the Susan B. Anthony List, an anti-abortion group,
planned to launch a billboard campaign accusing then-Democratic Rep.
Steven Driehaus of supporting taxpayer-funded abortion because he backed
President Barack Obama’s health care overhaul.
Driehaus urged the
Ohio Elections Commission to block the ads, arguing that the proposed
billboard was false under Ohio law. Given the threat of legal action,
the billboard owner declined to run the ad.
Driehaus eventually
lost his re-election bid and withdrew his complaint before it could be
fully heard. The Susan B. Anthony List then challenged the state law as
unconstitutional, but a federal judge ruled against the group, saying it
hadn’t suffered any harm in the case and thus didn’t have standing to
sue. The 6th U.S. Circuit Court of Appeals in Cincinnati agreed.
The
Susan B. Anthony List argues that it continues to face the threat of
prosecution under the law, creating a chilling effect on speech that
gives the groups a right to challenge the law without waiting for a
ruling from the election commission.
The Obama administration
backs that argument, even though White House officials have steadfastly
denied the proposition that the health care law allows abortions funded
by taxpayer dollars. The administration says a "credible threat of
prosecution" will chill the Susan B. Anthony List from engaging in "the
very type of speech to which the First Amendment has its fullest and
most urgent application."
In a telephone interview, Driehaus said
the work of the Ohio elections commission is needed "to call people into
account when spreading malicious lies."
"Not every candidate has
millions of dollars to spend on TV ads, and it’s difficult to get the
truth out, especially when constituents are bombarded with messages,"
Driehaus said from Swaziland, where he is a Peace Corps director.
Lawyers
for the state of Ohio assert there is no "credible threat of
prosecution" in the case because it never went beyond the very
preliminary stages of review before it was dismissed. The fact that the
Susan B. Anthony List might use the same language again is too vague to
give the group standing to challenge the law, the state argues.
Richard
Hasen, an election law expert at the University of California at Irvine
law school, said he believes justices will be skeptical of the lower
court’s finding that the Susan B. Anthony List had no standing to sue.
He said the Supreme Court will likely find that the lower court had
prematurely thrown out the case, then send the matter back to address
the free speech questions in light of the high court’s 2012 ruling in
United States v. Alvarez. That decision struck down a federal law that
made it illegal to lie about winning military medals or ribbons.
"The
Susan B. Anthony case hints at how tough it is going to be going
forward to get the current Supreme Court to accept ‘truth commissions’
reviewing the truth or falsity of campaign speech as constitutional,"
Hasen said.
Meanwhile, the Susan B. Anthony List says it’s moving
ahead to purchase similar billboards in opposition to Democratic U.S.
senators in Arkansas, Louisiana and North Carolina. Those states have
similar laws banning false campaign speech. But the group is declining
to run billboard ads in Ohio until the case is resolved, said the
group’s president, Marjorie Dannenfelser.
The case is Susan B. Anthony List v. Driehaus, No. 13-193.
___
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