Like 15 other states, Ohio has a law that prohibits false statements made during a campaign. The law allows virtually anyone to file a complaint alleging that an ad is false and allows the Ohio Elections Commission to make the initial determination as to whether it is truthful or not. The problem is that once the Commission issues a finding that an ad is false, the next step is a referral to a prosecutor who may or may not do anything about it. Unfortunately for the speaker, media outlets may refuse to carry the message.
That’s exactly what happened to the Susan B. Anthony List (“SBA List”) during the 2010 Congressional elections: after the Ohio election board found the SBA List’s statement about the effect of a Congressman’s votes on the Affordable Care Act and abortion funding to be false, a billboard vendor refused to put up the message (because the candidate sent a letter threatening to sue the vendor if it put up the ad). A federal judge refused to hear the case because of the pending (though ultimately dismissed) state enforcement proceeding. Another group that claimed it wanted to run an ad with the same message was also rebuffed by the federal courts because, according to the court, there was no proof that the group would face enforcement.
Last week, the Supreme Court heard oral argument in the case. The narrow legal issue was whether the federal court could hear the challenge at all. The justices seemed very skeptical that SBA List shouldn’t get its day in court. They also seemed skeptical of the Ohio law and whether an administrative agency should be allowed to determine whether a campaign communication is true or false. Justice Scalia characterized any agency charged with making such determinations as “the ministry of truth.”
Although most people probably think that it is good for candidate speech to be truthful, the SBA List case shows that whether something is truthful or not is often a very nuanced question. This is the billboard at issue:
Although the Ohio Elections Commission found probable cause to believe the ad was false, as the SBA List’s attorneys and others have explained, the SBA List based its claim on a study from the U.S. Conference of Catholic Bishops and stands behind the message.
Thus, whether the ad was false or not is at least debatable, making it the kind of electoral issue that perhaps should be left to the voters to evaluate, rather than the bureaucracy. That might explain why commenters on all sides of the debate have said that a “ministry of truth” is such a dangerous proposition in elections.
Based on the oral argument, it seems likely that the Supreme Court will agree, give the SBA List its day in court, and that ultimately the Ohio law will fall.