Truthiness and Free Speech: Supreme Court Takes Up Important First Amendment Case

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Weighing in on Truthiness

The Supreme Court (SCOTUS) recently agreed to hear a case that has important implications for political discourse in campaigns. Indeed, this case has a little bit of everything: abortion rights, free speech, campaign finance and PACs.

Here's what happened: an anti-abortion PAC, Susan B. Anthony List (SBA List), wanted to put up billboards in incumbent Democratic congressman Steve Driehaus's district stating: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortions." Driehaus claimed this was a false statement (on which more below) and reported the statements to the Ohio Elections Commission. Along the way, Driehaus threatened the company who owned the billboards with legal action, so the "taxpayer-funded abortions" signs never went up.

In Ohio, as in many states, it is a criminal offense to "knowingly" make false statements about a candidate that are intended to promote a candidate's victory or defeat. So after Driehaus' complaint, SBA List had to go defend itself in a "probable cause" hearing before the Elections Commission. The OEC found that there was probable cause that the statements were false (2-1, with the one Republican voting "nay"). However, after Driehaus lost his re-election bid in 2010, his complaint to the Elections Commission was dropped.

In the interim, SBA List filed suit against Driehaus and the Elections Commission alleging that the Ohio law re: knowingly making false statements about a political candidate violated its free speech rights (in the jargon, SBA List's speech was "chilled"), even though it contended that its statements were not in fact false. SBA List alleged that it was scared to speak its mind on abortion because it might be forced to defend its speech whether truthful or otherwise. Whether this sentiment is actually true is a point of contention; SBA List, in other media fora, still told voters that Driehaus voted for taxpayer-funded abortions.

The lower courts dismissed SBA List's suit on technical (i.e., jurisdictional) grounds saying that the anti-abortion PAC had not shown that its free speech rights were really ever in jeopardy because there was no credible threat of prosecution.

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