April 23, 2014 — During oral arguments on Tuesday, several Supreme Court justices appeared skeptical of an Ohio law that bars false statements in political advertisements, as well as the state's assertion that an antiabortion-rights group lacks standing to challenge it, Politico reports.
The high court is weighing whether the group, Susan B. Anthony List, has the legal standing to challenge a law under which it has not been prosecuted. A lower court said it did not, prompting the appeal to the Supreme Court. If the justices determine the group has the standing to sue, SBA List plans to proceed with its underlying lawsuit challenging the law's constitutionality (Winfield Cunningham, Politico, 4/22).
In August, SBA List asked the Supreme Court to review the law, which was invoked by former Rep. Steve Driehaus (D-Ohio) to block SBA List from erecting billboards that accused him of supporting taxpayer-funded abortions because he voted for the Affordable Care Act (PL 111-148). Driehaus said the group's claim was false because federal law prohibits the use of public funding for most abortions.
According to SBA List, the Ohio law violates its First Amendment right to free speech. The 6th U.S. Circuit Court of Appeals rejected the group's attempt to challenge the statute on those grounds (Women's Health Policy Report, 4/22).
SBA List's Arguments
On Tuesday, Michael Carvin, an attorney for SBA List, told the court that requiring individuals or groups accused of violating the law to go through an adjudication process during the limited time frame of an election cycle restricts their free speech. He argued that the groups or individuals would be harmed regardless of the outcome because the election cycle would likely be over by the time they receive a decision.
Carvin said, "You will never be able to adjudicate within that window -- speech becomes moot after an election," adding, "This means you'll literally never be able to challenge restrictions on election speech."
According to Politico, SBA List also raised questions about how the Ohio commission tasked with reviewing claims of violating the state law would determine what statements were sufficiently "false" enough for prosecution.
Justice Sonia Sotomayor questioned Carvin on how the group is currently being harmed by the law. "You have to assume further the panel is going to render the same decision" as the preliminary panel that ruled there was a likelihood the group's statements about Driehaus were false, she said, adding that the group also would "have to assume further that a federal prosecutor is going to bring a case."
Meanwhile, Ohio State Solicitor Eric Murphy argued that SBA List does not have the standing to sue because it was never prosecuted under the law. He said that while the preliminary panel found "probable cause" that the group's statements were false, that decision was "a long way off" from a formal prosecution.
"The credible threat of any criminal prosecution is really low," he argued (Politico, 4/22).
According to the Washington Post, the justices generally appeared unconvinced by Murphy's arguments.
Justice Ruth Bader Ginsburg said groups accused under the law could still suffer harm even if they were not prosecuted. "They're brought before the commission, they have to answer this charge that they lied, that they made a false statement," she said, adding, "And just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?"
Similarly, Justice Samuel Alito said, "You have a system that goes on and on, year after year, where arguably there's a great chilling of core First Amendment speech, and yet you're saying that basically [defendants] can't get into federal court" to challenge the law (Barnes, Washington Post, 4/22).
Chief Justice John Roberts noted that other groups could be potentially "intimidated" by the accusations leveled at SBA List, while Justice Anthony Kennedy speculated that requiring the group "to justify what [it is] going to say" could already impinge on free-speech rights (Biskupic, Reuters, 4/22).
SBA List President Pens Op-Ed
In related news, SBA List President Marjorie Dannenfelser in a USA Today opinion piece defends her group's claim that the ACA permits "both the direct use of taxpayer dollars to fund abortion and the provision of new tax credits that subsidize abortion-covering plans."
Although she argues that this claim is at the "heart" of the group's case, she adds that the case "is not just about the differences in world view between two sides in the abortion debate, it is about the liberty of every American -- liberal, conservative and in-between -- to make his or her case without fear of censorship and prosecution by the state" (Dannenfelser, USA Today, 4/22).