Yesterday, the Supreme Court gave the go-ahead to a First Amendment challenge to Ohio’s law on false campaign speech. Petitioners Susan B. Anthony List (“SBA”) and the Coalition Opposed to Additional Spending and Taxes (“COAST”) sought to proceed on facial and as-applied challenges to Ohio’s law based on statements they intend to make in future elections. Reversing the Sixth Circuit, the High Court found that Petitioners alleged a credible threat of future enforcement of the Ohio law against them. And that credible threat provided a sufficiently imminent injury to constitute an injury-in-fact under Article III. In other words, Petitioners’ alleged injury is sufficiently concrete to present a dispute the courts can hear.
As we discussed, in 2010, the SBA issued a press release and sought to display a billboard equating a vote for the Affordable Care Act with a vote for “taxpayer-funded abortion.” Based on those prior statements, the Ohio Elections Commission found probable cause to believe that SBA violated the Ohio law against false campaign speech. That Complaint was dismissed after the election. But the Supreme Court concluded that Petitioners’ planned future speech is comparable to the SBA’s 2010 statements. In light of the Commission’s probable-cause finding, the Court agreed that Petitioners’ intended future conduct is arguably proscribed by the Ohio false statement statute. The Commission proceedings, furthermore, gave teeth to a threat of future enforcement. And combined with the threat of criminal prosecution under the Ohio law, those threatened proceedings sufficiently burdened electoral speech to give rise to Article III injury.
The Court did not say whether the law was valid. But it did note that the statute “sweeps broadly” and could readily be used opportunistically by political opponents against one another. Also of note, the Court cited several times to the Ohio Attorney General’s Amicus Brief filed against the law.