Let’s be honest, there is a portion of our society that is what you would call not “voter savvy”. Sure, they attempt to keep current with local, state, and national news by reading the paper or watching television, yet we all know the potential bias these sources contain. Additionally, around election season, these sources are flooded with political campaign advertisements either idolizing or criticizing a particular candidate.
Some of these claims have merit, some recite half-truths or take comments out of context, and even worse others are complete fabrications aimed at tarnishing a candidate’s record and good name. Those aforementioned uneducated voters tend to take these advertisements at their word, without performing independent research about the issues or candidate’s political history. While this is an unfortunate scenario, a recently decided Sixth Circuit case that has been granted certiorariFN1 has the potential to impact this area of law greatly.
The case, Susan B. Anthony List v. Driehaus, involves three highly controversially issues; abortion, free speech, and yes even everybody’s newly cemented favorite, Obamacare. The facts of this case are fairly straightforward. Two organizations, SBA List and Coalition Opposed to Additional Spending & Tax Cuts (COAST), in the build up to the 2010 election, wanted to inform voters in then Congressman Steve Driehaus’s district about his vote in favor of the Affordable Care Act.FN2 They opposed this piece of legislation because they believed that it permitted taxpayer-funded abortions.FN3 SBA List planned to put a billboard up that was supposed to read “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion,” but it was never accomplished.FN4 Likewise, COAST planned to distribute flyers with similar information.FN5 Driehaus filed a complaint with the Ohio Elections Commission, which under state law possessed the authority to criminalize false political speech, against SBA List claiming that the advertisement violated the Ohio’s false-statement statute.FN6 Before the commission could hear the case, SBA List filed for declaratory and injunctive relief in federal district court, arguing that its “speech was chilled”.FN7 The district court consolidated both of these organizations claims and subsequently granted the defendant’s motion to dismiss – finding that the matter was not ripe and that the organizations possessed insufficient standing.FN8 The Sixth Circuit affirmed the decision.
Currently, this case is about standing and ripeness challenges, but both issues lack that sort of allure desired and their requirements can be easily manipulated. However, if the SCOTUS finds that these organizations have the requisite requirements to challenge the law, then this case may have substantial effects in determining whether false campaign speech can be regulated by the states. But, regulation of this type of speech should be viewed as unconstitutional.
Like Ohio, nearly two-thirds of the states have laws that prohibit false statements in political campaigns.FN9 But what exactly is a false statement in the political context? Clearly, with this case as evidence, a false statement is not as easily distinguishable as it would appear. Does Obamacare provide for tax-benefits for abortions? Some organizations would answer this question in the affirmative, while others would emphatically deny this claim. As James Hardiman, Ohio Legal Director of the American Civil Liberties Union said, “Speech is rarely black and white – oftentimes whether a statement is true or false may be a matter of opinion.”FN10 Additionally, is it adequate to leave this determination to an appointed election commission or judge?
Even if political speech can correctly be labeled false, based on SCOTUS precedent, it appears that purely false speech is a protected category under the First Amendment.FN11 Political speech is a fundamental right and its usefulness greatly outweighs the inherit dangers it contains. While it may be argued that states have a compelling interest in protecting the integrity of their elections, it should not be through the use of controlling campaign speech. Other actions are available to politicians such as responding to the allegations, filing defamations suits, or even doing nothing. It is important to keep in mind that politicians have put themselves in the limelight and therefore have availed themselves to public scrutiny.
FN1. Susan B. Anthony List v. Driehaus, 525 Fed.App’x. 415 (6th Cir. 2013), cert. granted, 82 U.S.L.W. 3094 (U.S. Jan. 10, 2014) (No. 13–193).
FN2. Susan B. Anthony List v. Driehaus, 525 Fed.App’x. 415, 417 (6th Cir. 2013).
FN5. Id.at 418.
FN6. Id. at 417.
FN7. SBA List, 525 Fed App’x at 417.
FN9. Sabrina Eaton, Should politicians have the right to lie? U.S. Supreme Court could decide in Ohio case, Cleveland Plain Dealer, Jan. 22, 2014, http://www.cleveland.com/open/index.ssf/2014/01/us_supreme_court_case_fr….
FN11. See United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012).