The makers of an anti-Obamacare billboard had their day in the nation’s highest court Tuesday, and justices broadly sympathized with their qualms against an Ohio law banning false statements about political candidates.
The question before the Supreme Court is whether the Susan B. Anthony List, an anti-abortion group, has standing to sue for relief from the state law, which led to the billboard company refusing to put up their ad in 2010. It accused then-Rep. Steve Driehaus (D) of supporting taxpayer-funded abortion by voting for Obamacare.
“Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say?” Justice Anthony Kennedy asked Ohio state attorney Eric Murphy, who was defending the law. “And which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?”
Justice Antonin Scalia sarcastically labeled the Ohio commission that tests the veracity of campaign statements the “Ministry of Truth” — a reference to the propaganda ministry in George Orwell’s novel 1984. (Earlier in the argument, SBA’s lawyer, Michael Carvin, twice alluded to the “Ministry of Truth.”)
If the line of questioning was any indication, the judgment will be lopsided in reversing a lower court ruling which said the SBA List lacked standing to sue. Conservative and liberal justices were sympathetic to the group’s contention that the threat of action under the law poses a chilling effect on its free-speech rights and constituted sufficient injury to sue.
“Why can’t a person say there are things I want to say politically, and the Constitution says that the State does not have the right to abridge my speech, and I intend to say them,” said Justice Steven Breyer. “And if I say them, there’s a serious risk that I will be had up before a commission and could be fined. What’s the harm? I can’t speak. That’s the harm. Right? So why isn’t that end of the matter?”
When Murphy sought to compare the validity of the Ohio statute to that of defamation laws, Chief Justice John Roberts wasn’t having any of it.
“Well, no, but a defamation action — people sue everybody all the time. No one’s going to take that seriously. In fact, it’s probably going to redound to the benefit of SBA … to say the congressman is, you know, bringing a defamation action,” Roberts said. “It’s another thing to have the state involved making a determination that there’s probable cause that you lied.”
Justice Ruth Bader Ginsburg appeared somewhat ambivalent, asking skeptical questions of Carvin, the SBA lawyer, which tested the parameters of what constitutes sufficient injury to sue in the absence of the state rendering a punishment over speech.
If the anti-abortion group wins, experts say the justices would likely send the case back to the lower courts to weigh in on the merits. They weren’t shy about expressing their concerns with the law itself, which suggests that a challenge against it on the merits would have teeth.
The case is Susan B. Anthony List v. Driehaus.