High court: Ohio's false statements law can be challenged


COLUMBUS — Ohio’s law prohibiting false statements in political ads can be challenged on constitutional grounds, the U.S. Supreme Court ruled unanimously today.

The high court found that the anti-abortion rights Susan B. Anthony List and Cincinnati-based Coalition Opposed to Additional Spending and Taxes can challenge the law as a violation of their free speech.

The issue had placed Attorney General Mike DeWine on both sides of the issue as his office worked to defend the law and he personally filed a brief agreeing with the plaintiffs that the law has a “potentially chilling effect” on free speech.

Under the law, a complaint may be filed with the seven-member, bipartisan Ohio Elections Commission alleging that an ad, pamphlet, Internet site, or other campaign material includes a false statement made knowingly or recklessly without regard to its falsity.

The process has often been used in the heat of campaigns for candidates to get official rulings that the other has lied.

The case stems from the 2010 election when the Susan B. Anthony List sought unsuccessfully to put up a billboard accusing then U.S. Rep. Stephen Driehaus, a Cincinnati Democrat, of voting for taxpayer-funded abortion through the federal Affordable Care Act.

A probable cause committee of the elections commission found 2-1 that the billboard statement was probably false, but Mr. Driehaus, who lost the election, withdrew his complaint before it reached a final determination by the full commission.

The Supreme Court found that the organizations had suffered harm because the anti-abortion group had already had a probable cause ruling against it and because the Coalition Opposed to Additional Spending and Taxes, or COAST, feared going forward with its own similar message because of that ruling.

“SBA’s insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around,” wrote Justice Clarence Thomas.

“And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA’s belief in the truth of its allegations,” he wrote. “Nothing in this Court’s decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.”

The court overturned a ruling by the U.S. 6th Circuit Court of Appeals in Cincinnati siding with the state. The high court sent the case back to the 6th Circuit for further proceedings.

“The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution,” Justice Thomas wrote.

Referrals from the commission for possible prosecution have been extremely rare, but a conviction would be a first-degree misdemeanor punishable by up to six months in jail and $5,000 fine. A second offender would escalate to a fourth-degree felony carrying of disfranchisement from political activity.