The Tully Center for Free Speech

Free Speech Zone

Decision: Susan B. Anthony List v. Driehaus

By Roy Gutterman, June 16, 2014

Two political action groups challenging an Ohio law that imposes criminal sanctions for false political campaign statements have legal standing to challenge that law, the United States Supreme Court ruled Monday.

Writing for the court, Justice Clarence Thomas believed that the groups had sufficient fear of injury to merit the declaratory action filed in federal court in Ohio in Susan B. Anthony List v. Driehaus.  The petitioners had gone to federal court to determine whether the law was valid under the First Amendment to the Constitution.

The law allows “any person” to bring a complaint before the Ohio Elections Commission regarding “a false statement concerning the voting record of a candidate or public official.”  In short, false statements made during a political campaign could expose a speaker to criminal liability.  Though a first offense was a misdemeanor, it was punishable with up to six months in jail and up to a $5,000 fine. A second conviction was a fourth-degree felony.

Even if the speech might be false, it was a steep price to pay for political speech, largely considered the most hallowed – and protected – form of speech.

Though eschewing much of the law’s First Amendment and broad free speech implications, the court remanded the case to the Court of Appeals for the Sixth Circuit.  So, it will likely not be the last word on the case.

The opinion focuses almost entirely on the constitutional principles of ripeness and standing (whether the petitioners had valid reasons to bring the case). The court analyzed whether the petitioners had real or “imaginary” fear of punishment while exercising their First Amendment rights. Further, the court noted that others intent on expressing opinions on political matters could also face sanctions. The court ruled that the “petitioners have alleged a credible threat of enforcement.”

Because the law targeted and in many ways punished political speech, the court believed there was a viable constitutional interest.

“The Ohio false statement law sweeps broadly and covers the subject matter of petitioners’ intended speech,” the court wrote.

The potential for future application of the Ohio law, coupled with the nature of the law itself, which could allow “a universe of potential complainants,” raised questions.   The Court noted that the Ohio Elections Commission, which administered the law, handles between 20 and 80 false statement complaints every year.