Monday, June 16, 2014

Some politicians upset by the Supreme Court’s reinvigorated defense of the First Amendment just can’t resist the temptation to use the courts to shut down the free speech of others. Fortunately, it’s not working. On Monday, the high court, even the left-leaning justices, agreed that the state of Ohio went too far in deputizing a state agency to decide what’s true and what’s not in political advertising.

Under that state law, the Ohio Elections Commission can dispatch prosecutors to threaten anyone who makes a “false statement” during campaign season with up to six months in jail and a $5,000 fine. A second conviction raises the threat to a felony with a fine of $250,000.

Four years ago, Steve Driehaus, a Democratic congressman in Ohio, took advantage of the law. He complained that members of the Susan B. Anthony List, a pro-life group, threatened to post billboards telling Cincinnati voters that his vote for Obamacare was a vote for taxpayer-funded abortions.

Mr. Driehaus had campaigned as a friend to the unborn. But he prevailed with his argument, and the billboards were not put in place. The voters then decided that Mr. Driehaus had to go. Rep. Steve Chabot, a Republican, took his place. Mr. Driehaus assumed that the only reason he lost the election was because voters were “deceived” by misleading ads. He insisted the Susan B. Anthony List was responsible for his “loss of livelihood” and that the federal courts must restrict such exercise of free speech, despite the First Amendment guarantee that the government cannot abridge freedom of speech.

To restore its ability to inform voters on pro-life issues, the Susan B. Anthony List sued to strike down the Ohio speech code as unconstitutional. The lower federal courts refused to hear the case because, they said, the Susan B. Anthony List had no standing to sue since it hadn’t suffered penalties.

The unanimous Supreme Court reinstated the case and insisted that the group was entitled to a “prompt judicial review” because the mere threat of jail time and fines forces the group “to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.”

In light of recent Supreme Court decisions defending the First Amendment, the group’s odds for success seem high. “We are optimistic that the district court will rule quickly and will side with the First Amendment,” says Marjorie Dannenfelser, the president of the Susan B. Anthony List, “so that we may proceed in Ohio — without fear of prosecution — with our ongoing efforts to inform voters that their elected representatives voted for taxpayer-funded abortion.”

Democrats ought to take this decision as a lesson, that trying to rig electoral rules to get an edge against Republicans is not a good thing to do. It’s a pity that the high court considered only the narrowest legal issue in this case without going to the merits, but the judiciary’s slow pace is an opportunity. Before it suffers further embarrassment, the Ohio General Assembly has a chance to repeal its illegal speech code and embrace the First Amendment in full.

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