Ohio Revised Code (RC) 3517.21(B) criminalizes 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 former Congressman Steve Driehaus’s vote in favor of the federal health care bill: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Driehaus, a former Democratic congressman of Cincinnati, 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 did 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 criminalizes political speech protected by the First Amendment.

Status Update

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 before Judge Timothy Black, 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 in order to challenge the law, SBA List needed to prove that authorities would certainly and successfully prosecute 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 on February 28, 2014, and the Court heard oral arguments on April 22, 2014.

On June 16, 2014, the Supreme Court reversed and remanded the Sixth Circuit’s decision. The 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 of 2014, Defendants Steve Driehaus and the Ohio Secretary of State were dismissed from the case. SBA List and the remaining defendant, the OEC, 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 granted Plaintiffs’ Motions for Preliminary Injunction and Summary Judgment and permanently blocked enforcement of Ohio’s political false-statements laws by the OEC and its members. Judge Black held that the law infringes on First Amendment protected speech and that the OEC could neither show that the law met a compelling governmental interest nor that the law was narrowly tailored to meet that interest. On October 14, 2014, the OEC appealed Judge Black’s Order to the Sixth Circuit Court of Appeals. The OEC filed its brief on February 11, 2015; SBA List filed its brief on March 30, 2015; and the OEC filed its Reply on April 16, 2015. The issue before the Sixth Circuit is whether the District Court erred in granting SBA List’s motions for preliminary injunction and summary judgment and applying strict scrutiny review to determine that Ohio’s law against false political speech unconstitutionally infringes on speech protected by the First Amendment.

On April 6, 2015, we filed an amicus brief in support of SBA List and co-plaintiff the Coalition Opposed to Additional Spending and Taxes (“COAST”). The brief was authored by David Carey, a cooperating attorney from the law firm of Thompson Hine. Oral argument before the Sixth Circuit took place on December 10, 2015. On February 24, 2016, the Sixth Circuit issued its opinion affirming the trial court. The Sixth Circuit panel held that Ohio’s false-statements laws are content based restrictions targeting core political speech that are not narrowly tailored to serve the state’s compelling interest in conducting fair elections. However, this Sixth Circuit ruling was much narrower than the District Court opinion. The Sixth Circuit found fault with aspects of the statute – for example, the “timing of the process” is too slow, the process “fails to screen out frivolous complaints,” and the statute applies to all statements, not just “material” ones – but not with the more basic harm posed by the statute, that the government has been made the arbiter of truth.

The OEC chose not to file for appeal, and thus the Sixth Circuit decision will remain.

Date filed

October 20, 2010