Free Speech on the Docket

Susan B. Anthony List v. Rep. Driehaus, et al.

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 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, 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. OEC found probable cause to believe the ad violated the statute. Driehaus commenced the discovery process. 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 Ohio Elections Commission 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 them before the Ohio Elections Commission. The 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 Southern District ultimately granted the Ohio Election Commission’s motion to dismiss SBA List’s second amended complaint for lack of ripeness and entered judgment for the Ohio Elections Commission 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 their renewed motion for summary judgment which was filed June 8, 2012. On July 25, 2012 we responded and declined to submit a new filing because we believe our initial amicus brief sufficiently addressed the relevant First Amendment issue and the current procedural argument is unrelated to the issues which 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 Southern District’s decision to dismiss for lack of ripeness. On August 9, 2013, SBA List filed a petition for a writ of certiorari to have their case heard before the Supreme Court of the United States on the ripeness issues involved in the case. The case before the Supreme Court concerns SBA List’s ability to bring a challenge against Ohio’s false speech law. The issue is whether SBA List must show that there is 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. The ACLU and the ACLU of Ohio filed an amicus brief with the Supreme Court of the United States on February 28, 2014. The case is set for oral argument on April 22, 2014.