Occasionally, the Supreme Court considers questions that are answered merely by asking them. On Tuesday, the court will hear arguments about this: Should a government agency, whose members are chosen by elected officials, be empowered to fine or imprison any candidate or other participant in the political process who during a campaign makes what the agency considers “false statements” about a member of the political class or a ballot initiative?
An Ohio statute, which resembles laws in at least 15 other states, says, among many other stern things, that: “No person, during the course of any campaign … shall … make a false statement concerning the voting record of a candidate or public official.” Former Rep. Steve Driehaus, a Cincinnati Democrat who considers himself pro-life, says he lost his 2010 re-election bid because the pro-life Susan B. Anthony List violated Ohio law with ads saying that when he voted for the Affordable Care Act, he voted for taxpayer funding of abortion.
When he learned that the Susan B. Anthony List planned to erect billboards proclaiming “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” he filed a complaint with the Ohio Elections Commission, the truth arbiter and speech regulator. So the billboard company refused the Susan B. Anthony List’s business. The Susan B. Anthony List did air its message on radio.