Free Speech on the Docket

Susan B. Anthony List, et al. v. Ohio Elections Commission

This case falls into the legal category of:

Read our October 20, 2010 amicus brief in Susan B. Anthony List v. Rep. Driehaus, et al.

Read the Southern District Court’s September 11, 2014 order blocking Ohio’s political false speech laws.

Case Dates:
Wednesday, 20 October, 2010 - ongoing

Ohio Revised Code (RC) 3517.21(B) prohibits making or distributing “false” statements about candidates for political office. Susan B. Anthony List (SBA List), a pro-life group, sought to distribute this message critical of Congressman Driehaus’s vote in favor of the federal health care bill:  “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Driehaus filed a complaint with the Ohio Elections Commission (OEC), pursuant to RC 3517.21(B), alleging that SBA List violated state law by making a false statement about him and his voting record, and asserting that the federal health care bill does not publicly fund abortion. The OEC found probable cause to believe that the ad violated the statute. SBA List filed suit in federal court against Driehaus and the Ohio Elections Commission, claiming that RC 3517.21 is an unconstitutional restriction on speech.

Legal Theory:

The prohibition on political speech in RC 3517.21(B), and the procedure by which the OEC judges the truth or falsity of political speech, are unconstitutional. The statute is vague and overbroad, because it prohibits political speech protected by the First Amendment.


SBA List, represented by separate counsel, filed a complaint and motion for temporary restraining order (TRO) on October 18, 2010, in the U.S. District Court for the Southern District of Ohio, seeking to enjoin the proceedings against it before the OEC. The District Court accepted expedited briefing on the TRO motion, and the ACLU of Ohio, on October 20, 2010, filed an amicus brief in support of SBA List’s motion for an order enjoining RC 3517.21(B) as unconstitutional. The District Court ultimately granted the OEC’s motion to dismiss SBA List’s second amended complaint for lack of ripeness and entered judgment for the OEC on August 3, 2011.

On July 1, 2012, we received a letter from SBA List’s counsel asking us to file a letter or amicus brief relating to its renewed motion for summary judgment, which had been filed June 8, 2012. On July 25, 2012, we responded and declined to submit a new filing because we believed that our initial amicus brief sufficiently addressed the relevant First Amendment issue, and the procedural argument that was raised was unrelated to the issues that concern the ACLU. On September 18, 2012, Driehaus submitted his response to SBA List’s motion for summary judgment. SBA List replied to Driehaus’ response on October 5, 2012. Oral arguments were held by phone on January 3, 2013 on SBA List’s renewed motion for summary judgment. On January 25, 2013, the Court granted SBA List’s renewed motion for summary judgment. On March 1, 2013, Driehaus filed his notice of appeal of the summary judgment. On May 14, 2013, the U.S. Court of Appeals for the Sixth Circuit issued its opinion and affirmed the District Court’s decision to dismiss for lack of ripeness. On August 9, 2013, SBA List filed a petition for a writ of certiorari to have its case heard before the Supreme Court of the United States on the ripeness issues involved in the case. The case before the Supreme Court concerned SBA List’s ability to bring a challenge against Ohio’s false speech law. The issue was whether SBA List needed to show a credible threat of successful prosecution under the law in order to challenge it. On January 10, 2014, the Supreme Court granted certiorari to hear the issues presented by SBA List. ACLU National and the ACLU of Ohio filed an amicus brief with the Supreme Court of the United States on February 28, 2014. The Supreme Court heard oral arguments on April 22, 2014.

On June 16, 2014, the Supreme Court of the United States reversed and remanded the Sixth Circuit’s decision. The Supreme Court reasoned that SBA List had successfully established that it was likely to engage in conduct prohibited by the statute, and thus the threat of future enforcement was substantial enough so that a court could review SBA List’s challenge.

Following the Supreme Court’s decision, the case was sent back to Judge Black in the District Court. On June 20, 2014, SBA List filed a motion for preliminary injunction. In early August, 2014, Defendants Steve Driehaus and the Ohio Secretary of State were dismissed from the case. SBA List and the remaining defendant, the Ohio Elections Commission, filed cross motions for summary judgment. On September 2, 2014, SBA List filed its Response to Defendants’ Motion for Summary Judgment. Oral arguments on the motions were held on September 4, 2014.

On September 11, 2014, Judge Black issued an order granting Plaintiffs’ Motions for Preliminary Injunction and Summary Judgment. The order permanently blocked enforcement of Ohio’s political false-statements laws by the Ohio Elections Commission and its members.  On October 14, 2014, the Ohio Elections Commission appealed Judge Black’s order to the Sixth Circuit Court of AppealsThe court’s briefing schedule sets the due date for the Ohio Election Commission’s brief on February 11, 2015 and SBA List’s brief on March 16, 2015.