- The Washington Times - Tuesday, April 22, 2014

Taking up a closely watched case on the roles of truth and lies in modern politics, Supreme Court justices Tuesday appeared skeptical about the constitutionality of an Ohio law that criminalizes false statements about candidates in the days before elections.

Emphasizing the need for a ruling with midterm elections approaching, the high court heard oral arguments on the law, which bars reckless statements — lying — about candidates for political office. The decision could void similar statutes in more than a dozen other states.

At issue were billboards prepared in 2010 by the Susan B. Anthony List, a pro-life group, accusing Steven Driehaus of supporting taxpayer-funded abortions because the Democrat voted in Congress for the Affordable Care Act.

Mr. Driehaus, who lost his re-election bid, filed a complaint with the Ohio Elections Commission. The commission found “probable cause” that the pro-life group violated a state law against making false statements in the 60-day window before the election.

The Susan B. Anthony List, backed by civil liberties groups on the right and the left, said the message on its billboards was protected by the First Amendment and that the Ohio government had no business policing the content of political speech in the middle of an election campaign.

Lower courts ruled that the Susan B. Anthony List did not face imminent threat of legal action because Mr. Driehaus dropped the case after the vote, but the pro-life group wanted to make similar statements about other pro-choice candidates and continued its challenge.

Michael Carvin, an attorney for the Susan B. Anthony List, asked the justices to rule that the case deserved its day in court.

Although the justices appeared united in their condemnation of the Ohio law, oral arguments do not reliably predict how the court will rule. A decision on the case is expected in June.

“The election space should be free from fear,” Susan B. Anthony List President Marjorie Dannenfelser told reporters outside the Supreme Court after the hour of oral arguments. “Nobody should be cowed into silence.”

Critics said the pro-life group was rightly being called to account for misrepresenting the Affordable Care Act’s abortion provision and the stances of Democrats who voted for the overall bill. Ohio officials said the plaintiffs were overstating the burden they faced in getting their political messages vetted by the electoral truth panel.

The Supreme Court justices noted that private advocacy groups could become tied up trying to justify their campaign ads with the truth panel in the crucial last days before elections.

“How long is all this procedural skirmishing going to take?” Justice Stephen G. Breyer said. “The elections are coming up and people have to know what they’re supposed to say, what they can say and what they can’t.”

Twenty-one organizations across the political spectrum filed briefs in support of the Susan B. Anthony List. The U.S. Solicitor General’s Office, representing the Obama administration, also urged the high court to allow First Amendment challenges to the law to proceed.

“I think the case is really about access to justice and whether the Susan B. Anthony List is entitled to their day in court to challenge the constitutionality of this statute,” said Steven R. Shapiro, national legal director of the ACLU, which submitted one of the briefs. “We believe, and others believe, the courts should be open to claims like this.”

It’s difficult to find another example of a political case with such strong agreement among ideologically diverse groups, according to a case summary from David Hudson Jr. at Vanderbilt Law School.

Mr. Carvin said the amount of time needed to process such cases would effectively squelch free speech during the most crucial period in an election cycle.

“No one is listening to election speech hardly at all 60 days before the election, and the day after the election, no one speaks or listens,” Mr. Carvin said.

Ohio State Solicitor Eric Murphy told the high court that the pro-life group and an anti-tax group also challenging the law were exaggerating the burden from the state. He said the plaintiffs could not demonstrate any evidence that the law restricted their free speech rights.

From 2001 to 2010, more than 500 proceedings on the false statement law were brought before the commission. Of those, Mr. Murphy said, only five were referred for prosecution.

But even a charge brought before the commission could harm a candidate, Justice Elena Kagan said, because the general public does not understand how low the bar is. “They think ‘probable cause’ means you probably lied,” she said.

Chief Justice John G. Roberts Jr. said companies might decline to put up political billboards for fear of getting dragged into a legal battle.

The legal question Tuesday was relatively narrow: when and how the two advocacy groups can challenge Ohio’s restrictions on political speech. More specifically, the justices weighed whether the groups have legal standing and whether it is premature to allow their constitutional claim to move forward.

But the outcome could have broad ramifications on campaigns in Ohio and the 15 other states with similar laws.

This article is based in part on wire service reports.

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