The Susan B. Anthony List in April told the Supreme Court that the law, which allows citizens to file complaints about untruthful statements with Ohio’s Election Commission, chills free speech before elections.
“The threatened proceedings are of particular concern because of the burden they impose on electoral speech,” said the decision authored by Justice Clarence Thomas. “Moreover, the target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election.”
The case stemmed from an ad the group placed that accused former Cincinnati-area Democratic congressman Steve Driehaus of voting for “taxpayer-funded abortion” by backing the Affordable Care Act.
Driehaus said the group’s allegation was false, since President Obama issued an executive order that said insurance plans in the exchanges would not use tax dollars to pay for abortions, except in cases of rape, incest, or to save the mother’s life.
He withdrew an Ohio Election Commission complaint he filed about the claim after losing his re-election battle to Republican Steve Chabot, so the truth of his complaint was never adjudicated, but the Susan B. Anthony List decided to challenge the law on free speech grounds.
Lower courts decided that the group couldn’t challenge the law because it hadn’t been found guilty of a violation, a stance that Ohio State Solicitor Eric Murphy argued was correct. He told the Supreme Court the state has a “compelling interest in policing fraudulent statements that can affect elections.”
At the same time as the state of Ohio defended the law, Ohio Attorney General Mike DeWine filed a separate legal brief to express his view that the law chills free speech. His brief argued the law allows “the state’s legal machinery to be used extensively by private actors to gain political advantage in circumstances where malicious falsity cannot ultimately be established.”
More than a dozen other states have similar laws that could be affected if Ohio’s statute is overturned.