The Tully Center for Free Speech

Free Speech Zone

First Amendment Showers at the Supreme Court

By Roy Gutterman, April 22, 2014

The United States Supreme Court will hear arguments Tuesday in two cases that have serious First Amendment implications: one with implications as old as time and politics and the other as modern as the technology involved. First Amendment cases do not dominate the 80 or so cases the court takes every year. Two being argued on the same day seems even rarer.

The first case on the Tuesday argument docket is Susan B. Anthony List v. Driehaus, which challenges an Ohio law that criminalizes false statements about a political candidate or ballot initiative. This controversy goes all the way back to the 2010 congressional re-election campaign of a U.S. Representative from Ohio who had been targeted by conservative political groups, particularly an anti-abortion group that had published statements that the Congressman, Steven Driehaus had voted for tax-payer-funded abortions through his vote for the Patient Protection and Affordable Care Act.

Claiming this was a false statement, Driehaus filed a complaint with the Ohio Elections Commission, invoking the controversial law. This led to a hearing and ultimately a constitutional challenge by SBA.

The law, which includes actual criminal sanctions of up to six months in jail and up to $5,000 in fines also includes procedural mechanisms that can also create the threat of sanctions.

SBA argues this restraint and threat of restraint on speech is blatant violation of the First Amendment. The lower court, the Sixth Circuit Court of Appeals, did not entirely clear up the messy procedural conflicts.

Surprisingly, as the SBA brief to the Supreme Court points out, Ohio is not alone with these types of false political speech statutes – nearly one-third of the states have them. SBA’s brief to the court makes several compelling arguments for protecting even false speech in political campaigns, equating this to a “chilling effect” on political speech. SBA also questions whether a law like this even has any efficacy. Most succinctly, SBA wrote: “Speakers should not have to risk criminal penalties to participate in the marketplace of ideas, particularly the political marketplace.”

For its part, the Ohio Attorney General Michael Dewine, makes mostly procedural arguments invoking constitutional doctrines of ripeness, arguing SBA did not incur “sufficient” injury and that its arguments on threat of sanction are too speculative to merit constitutional review.

Meanwhile, more than two dozen organizations lined up to support SBA with amici briefs, perhaps most notably the political humorist P.J. O’Rourke, whose brief’s question presented dripped with satire: “Can a state government criminalize political statements that are less than 100 percent truthful?”

As old as political mudslinging might be, the second case on Tuesday’s docket is as modern as they come. ABC v. Aereo pits the broadcast television networks against a start-up website which delivers the same content available in a broadcast region, except through an online subscription service.

At issue here is whether the U.S. Copyright Act’s definitions of retransmission of signals can be applied to the service which it compares to a personal DVR for broadcast signals that are collected via individualized mini-antennas. The broadcast programs are then available for playback by the subscriber.

Aereo’s briefs and arguments at the lower courts say this is no different than the way consumers in the late 1970s through the 1980s used VCRs to record shows for playback later. It is also akin to modern DVRs, which are used by 45 percent of American households. In essence, Aereo says that the litigation amounts to a war on cloud technology.

The broadcasters, on the other hand, believe that this subscription service robs them of revenues because Aereo is unfairly and without license retransmitting its programming without compensating them. A broadcasting executive at a recent communications law conference at Syracuse University College of Law said this was the biggest copyright case of the century and could redefine broadcasting.

“The broadcast television industry has invested billions of dollars producing, assembling, and distributing entertainment and news programming in reliance on this legal system. Yet Aereo has built an entire business around exploiting that copyrighted content – and has done so without obtaining permission from copyright owners or paying anyone a penny,” ABC argued in its brief.

The arguments are Tuesday morning and the Court will rule by the end of June. Stay tuned.