First Amendment Obamacare Ad Fight Looms as More Allegedly False Billboards Go Up

The Supreme Court will consider later this month if a group can say the health law funds abortion.

Pro-abortion rights and anti-abortion protesters rally outside the Supreme Court in Washington on Jan. 22, 2014.

Pro-abortion rights and anti-abortion protesters rally outside the Supreme Court in Washington on Jan. 22, 2014.

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The U.S. Supreme Court will hear arguments April 22 about states' ability to restrict allegedly false political speech.

In the meantime, variations of the anti-abortion Ohio ad central to the case are going up in three other states, the socially conservative Susan B. Anthony List announced Thursday.

Details about the new ad campaign are vague, but the group says it will target three southern Democrats – Sens. Mark Pryor of Arkansas, Kay Hagan of North Carolina and Mary Landrieu of Louisiana – for allegedly voting in favor of taxpayer-funded abortion as part of President Barack Obama's 2010 health care reform law.

The three senators are up for re-election in November.

A nearly identical ad against then-Rep. Steve Driehaus, D-Ohio, propelled the case known as Susan B. Anthony List v. Driehaus onto the Supreme Court docket. Billboard companies refused to run the ad in 2010 when Driehaus threatened to sue. A panel of the Ohio Elections Commission found probable cause that the ad violated two sections of Ohio law that criminalize making or disseminating false claims during a political campaign and the issue was referred to the full commission. No decision was made before the election.

The Susan B. Anthony List and an allied group sued in federal district court, saying their First Amendment free speech and association rights were threatened. They were rebuffed by the court and a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed that decision, in part because the commission did not issue a final ruling and also, the court said, because “evidence is thin at best” that Driehaus would seek office again.

The health care law bans federal funding for abortion by requiring subsidized insurance policies to use nonpublic funds for the procedure. Lawyers for the Susan B. Anthony List said in an August filing with the Supreme Court the group believes that’s “a mere accounting gimmick,” making their claim truthful.

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The attorneys say Ohio's speech restriction is unconstitutional and may chill the practice of First Amendment rights. They hope for a ruling similar to the Supreme Court’s 2012 decision in United States v. Alvarez, in which justices struck down a federal law that criminalized false statements about having a military medal.

“As all of the justices correctly recognized, allowing the government to serve as arbiter of political truth cannot be squared with basic free speech principles. Yet nearly one-third of the states still have statutes prohibiting 'false' statements made during political campaigns – often, as in Ohio, with criminal sanctions attached,” the lawyers argued. “These laws do exactly what Alvarez warned against, inserting state bureaucrats and judges into political debates and charging them with separating truth from oft-alleged campaign 'lies.'”

It’s unclear if the new billboard plans will be derailed because of state restrictions.

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North Carolina has a law similar to Ohio's that makes it a misdemeanor punishable with a $1,000 fine and up to 30 days in jail “[f]or any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.”

The anti-abortion activists claim to be unfazed by possible penalties.

“Sens. Hagan, Landrieu and Pryor betrayed the unborn and their pro-life constituents by voting for Obamacare," said Susan B. Anthony List President Marjorie Dannenfelser in a statement. "Since 2010, we have fought for our right to tell the truth about the abortion funding problems in Obamacare and expose the legislators who supported it. The U.S. Supreme Court will consider our right to do just that later this month. In the meantime, we cannot be silent. Our founders braved the threat of the gallows so that we would not have to fear speaking our true convictions."