Foes of False Speech Ban Score Unanimous Supreme Court Victory

Anti-abortion activists win right to challenge Ohio law in court.

Police officers spread out on the plaza in front of the U.S. Supreme Court as anti-abortion activists march on the 40th anniversary of the Roe v. Wade decision, in Washington, Jan. 25, 2013.

Ohio's anti-false statements law unconstitutionally squelches free speech, anti-abortion activists say.

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In a unanimous ruling, the U.S. Supreme Court said Monday anti-abortion activists can challenge Ohio’s ban on false political speech.

The court did not decide if the prohibition itself – or similar laws in about a dozen other states – unconstitutionally makes election officials arbiters of truth.

The nine justices ruled only on whether the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes can fight the ban before state officials take action against them.

Justice Clarence Thomas, writing on behalf of his colleagues, reversed decisions from a federal district judge and a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit that found the groups cannot sue because they lack proof future enforcement will happen.

“We’re going to move very expeditiously, as quickly as we can,” attorney Michael Carvin, who argued the case before the Supreme Court, said during a Monday conference call. “Ohio’s blatantly unconstitutional scheme has hindered our political speech in 2010 and 2012 and we don’t want that to happen again in 2014.”

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Carvin forcefully denounced the ban as establishing a “Ministry of Truth” – a fictitious government misinformation bureau in George Orwell’s “Nineteen Eighty-Four” – during oral arguments, a term also used by Justice Antonin Scalia. He hopes to win an injunction from a federal district court before November.

The case brought together an unusual coalition, with the Obama administration siding with anti-abortion groups. Ohio Attorney General Mike DeWine filed a brief acknowledging the ban may be unconstitutional.

The fight originated in 2010, when the SBA List attempted to rent billboard space to accuse then-Rep. Steve Driehaus, D-Ohio, of voting for taxpayer-funded abortion as part of the 2010 health care reform law.

The activists say that’s a factual assertion, but Driehaus accused the group of lying and filed a complaint with the Ohio Elections Commission. A billboard company refused to run the ad amid the dispute. A commission panel found probable cause the ad violated the law and referred the issue to the full commission, which did not evaluate the dispute before the election. Driehaus withdrew the complaint after losing the race.

SBA List and COAST want to distribute similar ads in Ohio – including against Democratic Rep. Marcy Kaptur – before the November election. During April 22 Supreme Court oral arguments Ohio State Solicitor Eric Murphy could not guarantee they would avoid another pre-election impasse.

“The burdensome commission proceedings here are backed by the additional threat of criminal prosecution,” Thomas wrote in the court's decision. “[D]enying prompt judicial review would impose a substantial hardship on petitioners, forcing them 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.”

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SBA List President Marjorie Dannenfelser told reporters the ruling is “the first step toward a true victory for the First Amendment and all of our abilities to communicate and a strike against fear in the public square.”

Dannenfelser said voters should decide for themselves what’s true, not a group of state officials. “It’s a vote for the voter,” she said.