On Tuesday April 22, 2014, the U.S. Supreme Court will hear argument about a law that prohibits false attacks on politicians. The case will likely contribute to existing jurisprudence on political speech.
At issue in Susan B. Anthony List v. Driehaus are ads designed to attack political opponents. Fifteen states, including Ohio, have ‘truth in politics’ laws. The Ohio statute prohibits attacking politicians with intentionally false statements regarding their respective voting records and does not allow publication of statements that are knowingly or recklessly false. Violations of the statute could result in criminal charges. The advertisement at issue accused a re-election candidate for the U.S. House of Representatives, Steven Driehaus, of voting for publicly-funded abortions. Driehaus did not cast such a vote; the ad was allegedly based on his vote in favor of the Affordable Care Act. The federal trial court and Sixth Circuit Court of Appeals have declined to hear lawsuits challenging the Ohio law on procedural grounds – primarily that the lawsuits were not “ripe” for decision because the publishers of the ad could not show they had been injured and had not been prosecuted for violating the law.
The U.S. Supreme Court has generally recognized generous free speech protections in the political arena. This may include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). To ensure the breadth of these protections, the Supreme Court has long held that the Constitutional protection cannot be pierced unless a defamatory falsehood was made with actual malice. To satisfy the high standard, one must make a statement that is false and damages a person’s reputation with knowledge the statement was false, or with reckless disregard for the truth. Id. at 279-80. Twelve years after the Supreme Court first announced the ‘actual malice’ standard, it underscored its support for First Amendment protections in the context of political speech: “[T]here is practically universal agreement that a major purpose of [the First Amendment] was to protect free discussion of government affairs…of course includ(ing) discussions of candidates….” Buckley v. Valeo, 424 U.S. 1, 14 (1976). In this context, a state law that threatens to stifle political speech may face a steep uphill battle.
In an interesting development, Ohio State Attorney General Michael DeWine filed two briefs in the case, one of which suggests the law may be unconstitutional despite his obligation to defend it. While it is not clear whether the Supreme Court will rule on the constitutionality of truth-in-politics laws or maintain a more narrow focus, the case should add an interesting chapter to our understanding of freedom of speech in politics.