CCP Staff Attorney Zac Morgan writes for the Washington Examiner:
The First Amendment harm of allowing a state agency to pick and choose which speakers may talk and which speakers ought to be punished is obvious. A straight challenge to the law would likely be quite successful.
But SBA List is not such a challenge. Rather, it is about a much more pernicious harm. The state of Ohio is attempting to use the judicial process itself to evade review of its law, and believes that its law may only be challenged once that process imposes a final penalty on SBA List.
As my organization, the Center for Competitive Politics, pointed out in ouramicus brief: “There is more than one way to impose a First Amendment harm. Ohio’s statute, which criminalizes false speech (as determined by the State), is one way. But even without such a determination, and the criminal sanctions that follow, an organization’s speech can be effectively chilled through judicial process itself.”