Should the people at the Statehouse get to decide what speech is true and what speech is false? Should state judges have the authority to declare that people cannot air certain ads, post certain billboards, or hand out certain leaflets during an election? How would that impact the election process—an arena in which accusations of lies are commonplace? These are the questions raised by the Ohio case, Susan B. Anthony List v. Driehaus, which was decided by the U.S. 6th Circuit Court of Appeals on February 24.
This story starts with some questionable state policies. Ohio has a set of laws that make it illegal for anyone to make false statements about a political candidate. During a 2010 election campaign, Susan B. Anthony (SBA) List urged voters not to vote for Representative Steven Driehaus because he had voted for the Affordable Care Act. According to SBA List, this meant that Driehaus had voted to fund abortions with federal money. Driehaus complained to the Ohio Elections Commission that this was a false statement, and thus the case began.
The ACLU of Ohio saw a strong opportunity to argue that the false-political-statement laws violate the First Amendment by restricting free speech and putting the government in the role of deciding what is true and what isn’t. We filed an amicus brief with the court laying out our opinion.
On February 24, 2016, the 6th Circuit Court ruled in favor of SBA List, but the ruling left much to be desired. The decision focused on whether the things SBA List said and wrote about Driehaus broke Ohio law. While the court stated that SBA List had done nothing wrong, it failed to address the constitutionality of the Ohio laws. Essentially, the court’s final decision didn’t address the First Amendment issue brought up in the ACLU’s amicus brief.
Whether or not you agree with the politics of the case, it ought to be troubling that the Ohio laws remain unchanged. It’s still illegal to publically share “a false statement concerning a candidate.”
In a political system like ours, which bases itself upon the votes of the people, individuals should have the opportunity and responsibility to decide for themselves which narratives to believe and which to disregard. The people in the Statehouse shouldn’t get to decide what is true and what is false.
We hope the courts will take a stand for the First Amendment the next time Ohio’s political false statement laws are challenged. The integrity of elections in Ohio may depend on it.