COLUMBUS — Ohio’s law that can punish candidates and groups that knowingly make false statements in political ads can be challenged on free speech grounds, the U.S. Supreme Court unanimously ruled Monday.
The high court found that the anti-abortion rights Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes have the right to challenge the law’s constitutionality.
The issue had placed Ohio Attorney General Mike DeWine on both sides as his office defended the law while 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, mailer, or other campaign material includes a false statement made knowingly or recklessly without regard to its falsity.
This case stems from the 2010 election when SBA was blocked from putting 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 likely false, but Mr. Driehaus, who lost the election, dropped his complaint before it reached the full commission.
The U.S. 6th Circuit Court of Appeals in Cincinnati dismissed the groups’ lawsuit after determining they had not been injured because no final commission ruling was made. But the Supreme Court found that the organizations had suffered harm because the anti-abortion group had a probable cause ruling against it and because COAST feared going forward with a similar message because of that ruling.
“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,” Justice Clarence 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 offense would escalate to a fourth-degree felony carrying disfranchisement from political activity.
“I think, for many of us, we get a bit queasy having government decide what the truth is,” said Catherine Turcer of the government watchdog Common Cause. “Whether you’re right, left, or center, it makes you queasy. The problem is we need a referee in this game.”
Contact Jim Provance at: firstname.lastname@example.org or 614-221-0496.