Today the US Supreme Court took up the case of Susan B. Anthony List v. Driehaus, in which the pro-life SBA is challenging speech-regulators in Ohio. There, the Ohio Elections Commission is being sued after attempting to enforce an Orwellian truth commission law which seeks to make it illegal to knowingly or recklessly make a false statement about a candidate during an election. Punishing political lies sounds all well and good until one realizes that it is the politicians being criticized – and their crony friends – who get to decide what the “truth” is.

The case started in 2010 when the Susan B. Anthony List planned to put up a billboard accusing then-Rep. Steven Driehaus of supporting taxpayer-funded abortions by voting for ObamaCare. Driehaus, a congressional Democrat, filed a complaint with the Ohio Elections Commission alleging that the ad was false. Driehaus’s legal counsel then used the case at the elections commission to bully the billboard company into refusing to carry SBA’s message.

The speech-regulators at the Ohio Elections Commission agreed with Driehaus that there was probable cause to find that Susan B. Anthony List’s statements were false (an amicus brief filed by the Bioethics Defense Fund argues eloquently to the contrary). So, SBA filed suit against Driehaus in federal court and, after battling all of the typical procedural hurdles that bureaucrats use to avoid having to answer for their unconstitutional actions, the case has made its way before the Supreme Court.

Amicus briefs filed by interested parties very eloquently make the case against this sort of regulatory authority’s use to stifle constitutionally protected speech. The arguments feel very familiar in light of the attacks Empower Texans has undergone at the hands of the Texas Ethics Commission, a rogue agency that has worked side-by-side with our left-wing lobbyist opponents.

Pointing out the problems with the Ohio process – which is eerily similar to the out-of-control ethics complaint process here in Texas – the Institute for Justice explained:

“Ohio’s law places enormous power in the hands of unelected, unaccountable complainants to initiate costly and time-consuming proceedings against political speakers. Under the challenged Ohio statute, upon receipt of a complaint by ‘any person’ alleging a violation of the false-speech laws, the Commission must initiate proceedings.”

The Institute for Justice went on to explain that complaint-driven speech regulation means that complaints will almost always be filed by political opponents seeking an advantage:

“Experience suggests that complaint-driven statutes like Ohio’s are frequently used as strategic weapons to silence political speech in the final hours of political campaigns – when it is most valuable – precisely because they are so easy to invoke. For example, [the investigations manager for the Florida Ethics Commission in a related case] admitted under oath that approximately 98% of the complaints it receives are ‘politically motivated,’ and that ‘many times’ complaints are filed by individuals seeking to ‘punish their political opponent’ or to ‘harass that person or otherwise divert their attention from their campaign.’”

This complaint-driven process in which commissions are required to investigate every claim ensures that, when a complaint is filed, the complainants are then enabled to run around the state declaring that their target is “under investigation” by state regulators. The Institute for Justice summarized the problem, concluding:

“In the real world, the risk of being dragged through the burdensome process of responding to investigations initiated by one’s political adversaries is a formidable deterrent to political speech. Wholly aside from the indignity, expense, and potential consequences, the process will inevitably distract the speaker’s attention and resources away from getting out his message.”

Perhaps the best take-down of Ohio’s absurdly unconstitutional law came in an extremely humorous amicus brief filed by conservative humorist P.J. O’Rourke and the Cato Institute’s Ilya Shapiro. In the brief, the duo argued that the best answer to false speech is more truthful speech. “No government agency could do a better job policing political honesty than the myriad personalities and entities who expose charlatans, mock liars, lambaste arrogance, and unmask truthiness for a living,” wrote O’Rourke and Shapiro. “There is no lie that can be told about a politician that will not be more damaging to the liar once the truth is revealed. A crushing send-up on The Daily Show or The Colbert Report will do more to clean up political rhetoric than the Ohio Election Commission ever could.”

We will be keeping a close eye on this case as it develops. We are hopeful that the nine justices will return some sanity to Ohio on the First Amendment and rein-in the speech regulators who think they can use the bureaucracy to bully their opponents into silence.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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