The U.S. Supreme Court heard oral arguments this week on an important lawsuit concerning freedom of speech, but many news organizations failed to report on the issue.
Maybe that’s because a pro-life group brought the lawsuit and may win a significant victory before the court.
The Washington Times gave the case the prominence it deserved — a challenge to an Ohio law that severely restricts freedom of speech during political campaigns. More than a dozen other states have similar laws.
The case, Susan B. Anthony List v. Driehaus, involves the Ohio Elections Commission, which can criminally punish anyone for knowingly or recklessly publishing a “false” claim about a political candidate. During the 2010 election the Susan B. Anthony List, a pro-life group, wanted to advertise that then-Rep. Steve Driehaus, an Ohio Democrat, had supported government funding of abortion by voting for the Affordable Care Act. Specifically, the anti-abortion group prepared a billboard that read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”
Mr. Driehaus, who claimed he did not support abortion, filed a complaint based on the state’s law with the commission, which voted to conduct a formal hearing on the matter. As a result, the advertising company declined to erect the billboard during the 2010 midterm campaign.
I believe the Ohio law and others like it clearly violate the First Amendment by chilling free speech. Moreover, it would be extremely difficult to determine exactly what could be considered true or false in a political campaign. For example, did President Obama lie when he told voters they could keep their doctors and their medical insurance policies under the Affordable Care Act, or was he simply misinformed? The voters tend to listen to the various arguments put forward during a campaign and decide whom they believe.
Although the U.S. Supreme Court heard arguments concerning a technical issue in the case — whether the pro-life group could actually challenge the law because Mr. Driehaus later dropped his complaint — the justices seemed troubled about the constitutionality of government policing of political speech.
Justice Anthony Kennedy asked Ohio State Solicitor Eric Murphy: “Don’t you think 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?”
Justice Samuel Alito Jr. added that “arguably there’s a great chilling of core First Amendment speech.”
Justice Ruth Bader Ginsburg said groups accused of lying might suffer harm even if they are not prosecuted: “They’re brought before the commission, they have to answer this charge that they lied, that they made a false statement,” she said during the oral arguments. “And just that alone 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, right?”
While the conservative and liberal wings of the court seemed ready to challenge the law, so, too, did groups on the right and the left join forces to contest the provision. For example, the ACLU supported the pro-life group’s stance that the Ohio law violated freedom of speech. Moreover, Ohio Attorney General Mike DeWine, a Republican whose office had to defend the law, filed a personal brief that raised constitutional doubts about his state’s statute.
As the 2014 election campaign begins, concerns persist that the Ohio law and others like it will inhibit candidates and their supporters from pointing out inconsistencies in the actions and statements of opponents. Unfortunately, many news outlets ignored this important issue — one on which the left and the right seemed to agree for a change.
• Christopher Harper is a professor at Temple University. He worked for more than 20 years at The Associated Press, Newsweek, ABC News and “20/20.” He can be contacted at firstname.lastname@example.org. Twitter: @charper51.