At 10 a.m. next Tuesday, the Supreme Court continues its current fascination with free speech and the First Amendment, exploring at a one-hour hearing when an advocacy group can challengea restriction on election campaign rhetoric. Arguing for two advocacy groups in Susan B. Anthony List v. Driehaus will be Michael A. Carvin of the Washington, D.C., office of Jones Day, withtwenty minutes of time. If the Court, as expected, permits the federal government to join in the argument, its views will be represented by Eric J. Feigin, an Assistant to the U.S. Solicitor General, with ten minutes. Ohios lawyer at the lectern, with thirty minutes, will be Ohio Solicitor Eric E. Murphy of Columbus.
The attack ad, often used to shamea candidate in an effort to persuade voters, is as common in todays political campaigns as buttons, town hall meetings, andendorsements. But it is not routine for the government to try to police those ads. The state of Ohio and some fifteen others try to do so, however, and that has helped produce the latest First Amendment case for a Supreme Court that currently has a keen interest inthat amendment, especially in campaign settings.
In all of the history of the First Amendment, theCourt has never ruled that false statements are totally without protection under the Constitution. It made the point again (although in a somewhat uncertain ruling that lackeda clear majority) in the decision two years ago in United States v. Alvarez, which took most of the punch out of a federal law making it a federal crime to falsely claim that one had received a military medal. That, too, involved political speech.
But if a group or an individual wants to challenge a law that outlaws speech, how and when is it allowed togo to courtto claim the protection ofthe First Amendment?That is the issue the Court faces next week, in the first case to reach it in which opposition to the new federal health care law became a campaign issue.
When the House of Representatives in 2010 gave its final approval to the Affordable Care Act (now known widely in politics as Obamacare), one of theDemocrats voting for it was Rep. Steven Driehaus, representing an Ohio district that included Cincinnati and its suburbs. Later that year, he campaigned for reelection, but was defeated.
An advocacy group that is opposed to abortions, the Susan B. Anthony List, made an arrangement to put up a billboard in Driehauss district that would proclaim: Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion. It also aired radio broadcasts with the same message. The billboard never went up, because the company owning the space backed down when a lawyer for the congressman threatened to sue, claiming the message misrepresented his vote.
Driehaus soon pursued a complaint with the Ohio ElectionsCommission, which has the power to recommend prosecution for violations of a state truth-in-politics law. That law has two key provisions:it prohibits anyone from trying to influence voters by intentionally making a false statement about a candidates voting record, and it prohibits the distribution of any false statement about a candidate if the source knew it was false or didnt care whether it was true or false.
The state commission, in a preliminary vote, sided with Driehaus, but before any prosecution by state officials went forward, Driehaus was defeated for reelection, and his complaint was dismissed by the commission at his request.
Susan B. Anthony List then sued in federal court,seeking to strike down the law under the First Amendment. It sued Driehaus and the state commission, along with its members. Thatcase was joined with one filed by an anti-tax group, the Coalition Opposed to Additional Spending and Taxes, which had wanted to send out emails and other materials also attacking Driehaus for allegedly voting for tax-supported abortion. That group said it had held off sending out its messages because it knew of the commission action on Driehauss complaint, and was deterred from speaking out.
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Argument preview: Attack ads and the First Amendment