During most elections, candidates accuse their opponents of making false claims. In Ohio, they can go a step further: They can ask a government commission to decide who is telling the truth.
That’s what happened last fall when then–U.S. representative Steve Driehaus filed a complaint with the Ohio Elections Commission against the Susan B. Anthony List, a pro-life group. Driehaus, a self-described pro-life Democrat, argued that the message the SBA List planned to put on billboards in his district — “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion” — was false.
Driehaus disagreed that Obamacare funded abortion. (Never mind that Florida Democratic representative Debbie Wasserman Schultz, talking about the last minute “compromise” on abortion, said the same day that the legislation passed the House that “an executive order can’t change the law.”) And he thought that the State of Ohio would take his side.
In addition to filing the complaint, Driehaus contacted the Lamar Advertising Company, which owned the billboards, and threatened to include them in the complaint if they did not terminate their agreement with SBA List and refuse to run the ads.
Lamar folded, and the billboards didn’t go up. A preliminary hearing found that there was probable cause that the SBA List ads were false. The full commission hearing, originally scheduled shortly before the election, was never held. In mid-November, a then-defeated Driehaus withdrew the complaint and sued the SBA List for defamation in federal courts. The SBA List is fighting the defamation suit and filed a brief late last month arguing that the Ohio false-statement law is unconstitutional.
“This case is probably the best case to test the constitutionality of law,” says SBA List president Marjorie Dannelsfer. Here’s a situation where the entire Republican party, the entire pro-life movement, the official position of the Catholic Church is one side, and the Democratic party and Congressman Driehaus are on the other. And a tribunal set up to decide the veracity of either side’s argument is simply counter to our founding and our First Amendment rights.”
“We don’t want to be victimized again,” says James Bopp, a lawyer working on behalf of the SBA List on the case. “This is just a weapon that can be deployed during any election to try to stifle speech.”
Ohio’s law, which prohibits anyone from making “a false statement concerning the voting record of a candidate or public official,” applies to all non-presidential elections, even if they are for federal office. Sixty to 80 cases are brought to the Ohio Election Commission’s attention every year, estimates Philip Richter, its executive director. About ten to 15 of those ultimately receive a hearing from the full commission. (More pass the preliminary-hearing phase, but sometimes the parties reach agreement and the complaint is dropped before the full hearing.) If the OEC decides that a statement is false, there are three possible outcomes: The person making the statement can be prosecuted by Ohio (very rarely applied), the person can receive a public reprimand letter, or the commission can announce its finding of falsity.
Distaste for the law crosses ideological borders: The Ohio branch of the ACLU, which agrees with Driehaus that Obamacare does not fund abortion, filed an amicus curiae brief last fall stating its support for the SBA List’s fight against the law. “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech, and, in any event, the best answer for bad speech is more speech,” wrote the ACLU.
For those in Ohio who have grappled with the law for years, there is concern about how often the law already stifles speech. “The mere existence of the law allows people to make an allegation and then chill speech right before an election, which is exactly what Driehaus was able to do,” comments Maurice Thompson, executive director of the Ohio-based 1851 Center for Constitutional Law.