A state-sponsored 'ministry of truth'

Ohio, like several other states, has a statute that penalizes false statements about a candidate during an election campaign, and has established a state agency to hear and adjudicate complaints of violation of the law. That law became the subject of litigation ultimately appealed to the U.S. Supreme Court. Susan B. Anthony List v. Driehaus, No. 13-193. The case was argued April 22 amid great anticipation that fundamental First Amendment issues involving campaign speech might be decided by the court.

That anticipation, however, is in all probability doomed to disappointment. The 6th U.S. Circuit Court of Appeals, affirming the district court, dismissed the case on the basis that the case was not ripe for adjudication, and therefore did not meet Article III's "case or controversy" requirement.

But argument before the Supreme Court did at times go beyond the ripeness issue, addressing fundamental questions raised by a law giving a government agency the power to decide whether campaign speech is lawful. Indeed, both the justices and counsel referred to a "ministry of truth," invoking images of George Orwell's "1984."

The case arose when, in the heat of the 2010 election season, an anti-abortion group (the Susan B. Anthony List, or "SBAL") proposed to sponsor a billboard asserting that incumbent Rep. Steven Driehaus had voted for taxpayer-funded abortion.

The congressman denied the charge, and filed a complaint with the Ohio Elections Commission, asserting that the advertisement violated the Ohio law that prohibited knowingly made false statements about a candidate. That law specifies a detailed procedure for determining the merits of such complaints. The procedure was initiated, but the congressman lost the election and later withdrew the complaint.

SBAL then brought action against Driehaus, the members of the commission, and the Ohio secretary of state alleging that the Driehaus' action and the commission's proceedings chilled SBAL's First Amendment rights of free speech and association.

The 6th Circuit applied the usual three-question ripeness test. First, since no harm had occurred to the plaintiff, what is the likelihood of it happening in the future? Next, was the record sufficient to allow a fair adjudication of the parties' claims? And finally, what will be the degree of hardship to the parties if the courts declined to decide the case?

The 6th Circuit held that all three questions should be resolved against reaching the merits, and dismissed the case, leaving it to be appealed to the Supreme Court on the sole issue of ripeness.

Maybe. That is the technical posture of the case, but the fundamental issue behind it kept raising its head during the argument.

The idea that a government entity is entitled to decide what can be said in the course of an election is striking. And that it should be made on the basis of a judgment of "false statements" is even more counterintuitive.

The Roberts court has addressed whether false statements can have constitutional protection in the 2011 in Alvarez v. United States. There, a federal statute (the Stolen Valor Act) made it a crime to "falsely represent oneself to have been awarded" any military medal. Alvarez claimed to have been awarded the Congressional Medal of Honor, and was duly prosecuted.

The Supreme Court held that Alvarez's conviction violated the First Amendment. The court rejected the argument that false statements are entirely outside constitutional protection. (The successful defendant was a virtual Munchausen, and the statements with which he was charged were palpably false.) The court held that false speech is not entirely unprotected, and could be criminalized only when it was the cause of some "legally cognizable harm." It distinguished such cases as perjury and false statements to government officials - the Stolen Valor Act applied regardless of the context of the speech.

Counsel for the plaintiffs in Driehaus contended that the filing of a complaint itself acted as a chill on speech. Even though it might not be enforced, the very existence of a procedure to question their speech, they contended, constituted a sufficient disincentive to free speech to violate the First Amendment.

This argument surfaced in some biting questions from Justices Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg and Samuel Alito.

Kennedy: "Don't you think there's a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery powers to find out who's involved in your association, what research you've done, etc.?"

Breyer: "Why can't a person say, you know, there are things I want to say politically, and the Constitution says that the state does not have the right to abridge my speech, and I intend to say them. And if I say them, there's a serious risk that I will be had up before a commission and could be fined. What's the harm? I can't speak. That's the harm. Right? So isn't that the end of the matter?"

Counsel for Ohio was asked how many complaints had been filed with the commission. The answer was 500 between 2000 and 2010, of which only three ended in any plea agreement.

Alito suggested that counsel had described a "system that really limits core First Amendment speech without providing much of an opportunity for judicial review." He went on to characterize the law as "a system that goes on, year after year, where arguably there's a great chilling ofcore First Amendment speech and yet you're saying that basically you can't get into federal court." That is, if the law cannot be challenged under these circumstances, when could it be?

It should be clear from these bare statistics that the law is being used during campaigns to either gain publicity or intimidate, or both, and that the complaints are dropped once the election is past. Hopefully the justices will see this pattern.

We are often cautioned that it is dangerous to read too much into the court's questions. They are, after all, only questions, not statements of legal position. But they tend to reflect the thinking of the justices, and often turn out to be an accurate indicator of the ultimate result.

The eventual resolution of the core issue should be the conclusion that the best way for a republic to counter false statements is the electoral process itself. Democracy is best served when candidates relying on falsehoods pay the price at the ballot box.

It is unlikely that the basic question of the propriety of state involvement under the Ohio law will be resolved in this case. But the stage may well be set for a decision in the near future.

The First Amendment should not be read to allow censorship of any kind, much less of the kind permitted by laws authorizing a state-sponsored "ministry of truth." It appears likely that more than one of the justices will ultimately take this position.