Press mulls its right to lie in coverage of SBA List v. Driehaus

Last week, the Supreme Court agreed to hear a challenge to Ohio’s false-statement law, granting cert to Susan B. Anthony List v. Driehaus. You can find background on the case here and here.

Ohio’s false statements law is much more pernicious than many realize, especially when simply reading the headlines. Indeed, what’s fascinating is that there is no question that the SBA List ads that prompted this suit are true – yet SBA List was still forced to defend itself before the Ohio Election Commission and had to consider the possibility of criminal penalties before speaking.

This law is so bad that two years ago, in another case (COAST v. Ohio Elections Commission), I represented Ohio Attorney General Mike DeWine in filing a “Buckley amicus,” a brief for the AG, in his personal capacity as an elected representative of Ohio’s citizenry, noting the serious constitutional deficiencies in the law. [The brief should be available, but this link seems to work somewhat randomly].  You can read short excerpts here and here.

Many articles on the Susan B. Anthony List case noted that former-Rep. Driehaus dropped his complaint immediately after losing the election, suggesting both that that is why he dropped the complaint and that it moots the case. Although we aren’t privy to why Driehaus decided to drop the complaint when he did (and, we might note, he did not drop a concurrent lawsuit for defamation), it is clear that the majority of false statement complaints at the Ohio Elections Commission (OEC) are dropped after the election.

Why? The complaint’s purpose is served before the election.

Every moderately competent Ohio lawyer practicing in the field knows how the game works. You file your complaint one week before the election. A three member “probable cause” panel of the OEC will then determine if “probable cause” exists, typically on Thursday or Friday morning before the election.

The members of this panel – who need no legal training at all, are appointed by political affiliation, often have a majority membership from one party, and are prohibited by Ohio law from considering constitutional objections – then make a probable cause determination, at a very low (though indeterminate) level of proof. This typically results in a finding of “probable cause” that the accused has “lied” in a statement.

The complaining candidate then features this finding in advertisements run over the week-end of the campaign. “A panel of the Ohio Elections Commission found probable cause that my dirty rotten scumbag opponent’s campaign ads are lies.” The credulous/ignorant/what-the-heck-it-has-the-whiff-of-a-scandal-let’s-go-with-it (take your pick) press trumpets the findings through newspapers and radio news in the district in the campaign’s final 2-3 days. When the case is dismissed (voluntarily or not – the DeWine brief in COAST notes that the overwhelming majority of complaints that are prosecuted are dismissed, and the majority of those not dismissed tend to eventually be overruled on appeal) it is long after the election, and after the damage has been done.

The DeWine brief in the COAST case outlines numerous other practical deficiencies in the operation of the law. For now, I’ll just say that the law makes a sham out of the idea of due process. And these non-lawyer OEC members typically have not read any briefs before the panel convenes to make its determination – the complaint is typically filed about 48 hours before the hearing, a response, if any, the day before, and rarely read. The OEC has just one single lawyer on its entire staff, and he also serves as Staff Director. As a matter of reality, he can rarely provide more than the most cursory analysis of the complaint before the panel meets. The panel normally votes immediately after presentation of the case.

But it can get worse worse, and the Susan B. Anthony List case demonstrates how. Driehaus complained that the SBA List ads, accusing him of voting for public funding of abortions by voting for Obamacare, were false. This all hinges, it has been suggested, on whether the voter should have believed the U.S. Conference of Catholic Bishops, which argued at the time that the Affordable Care Act did provide public funding for abortions, or Driehaus and other congressmen who argued that a March 2010 Executive Order would prevent taxpayer funding for abortions (although the effect of that order was always in doubt, and it could be repealed at any time by the President).

Of course, that legitimate dispute would be bad enough as a reason to silence the speaker for “false” speech. It shows that the SBA List ads accusing Driehaus of voting for public funding of abortion were not demonstrably “false.” But in fact, the SBA List ads were not only arguably true, they were literally, absolutely true. At this link you can see a photo of the SBA List proposed billboards that prompted Driehaus’s complaint. They state, in their entirety, “Shame on Steve Driehaus! Driehuas voted for taxpayer-funded abortion.”

Now here is the relevant actual text from the President’s Executive Order:

The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered)…. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered). … I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements.

In other words, the ACA specifically allows the use of tax credits and cost-sharing reduction payments to pay for abortion in the cases of rape or incest, or when the life of the woman would be endangered – or at least President Obama thought so when he issued the Executive Order. Or, in plain speak, Obamacare provides for taxpayer-funded abortions. The plain and simple fact is that the SBA List statement at issue in this case is absolutely, literally true. Obviously many people feel that the government should pay for abortions in the case of rape, incest, or endangerment of the mother’s life. But it is still paying for abortions.

Thus, the only way to characterize the SBA List speech as false is to ignore its literal meaning and impose some context/interpretation to the effect of “you mean taxpayer funding of abortion in cases other than the usual exceptions… .”

Yet despite the clear truth of the statement, the OEC found there was probable cause that the SBA List statement was “false speech.”

I would hope that this case goes 9-0. And I would hope that the press will do better than to run with the misleading but all too easy narrative “Court says Constitution protects lies in political ads.” I’m reasonably optimistic on the former, but not at all optimistic on the latter.


  1. […] a column about the upcoming Supreme Court case on the Center for Competitive Politics website, Smith argues […]

The Center for Competitive Politics is now the Institute for Free Speech.