A First Amendment challenge to Ohio’s law on false campaign speech is among the Supreme Court’s new grants for 2014.  Ohio law prohibits knowingly or recklessly false statements about a political candidate or ballot initiative.  In Susan B. Anthony List v. Driehaus, the Sixth Circuit affirmed dismissal of the suit as unripe; the court concluded that the likelihood that the statute would be enforced against the Plaintiffs (now Petitioners) was too remote to render the case justiciable.

Petitioner Susan B. Anthony List (“SBA”) is an advocacy group that, during the 2010 elections, criticized members of Congress who voted for the Affordable Care Act, including Rep. Steven Driehaus (D-OH).  The SBA sought to put up billboards stating that Rep. Driehaus’s vote for the ACA was a vote for taxpayer-funded abortion.  Rep. Driehaus filed a complaint with the Ohio Elections Commission (“Commission”) alleging that SBA’s message violated Ohio’s law against knowingly or recklessly false campaign speech.   Finding probable cause that the statute was violated, a panel of the Commission voted 2-1 to refer the case to the full Commission.  The SBA then challenged the law in federal court on First Amendment grounds (joined by the Coalition Opposed to Additional Spending and Taxes (“COAST”)).  In the meantime, Rep. Driehaus lost the election and the complaint to the Commission was dismissed.

Before the merits of the Ohio law can be litigated, the Court must determine whether a sufficient injury or credible threat of prosecution exists to satisfy justiciability requirements.  Enforcement of the false-statement statute is divided into several parts.  The Commission investigates complaints of alleged violations, but may not impose punishment.  The Commission may, however, refer potential violations to a prosecutor, who then decides whether to prosecute.  The Sixth Circuit determined that the Commission’s probable cause finding, without more, did not constitute prior enforcement of the statute or create a credible threat of future prosecution.  The Court has not been asked to review the constitutionality of the law itself; that issue would be sent back to the lower courts if the suit is reinstated.