SBA List’s ‘Right to Lie’ Case, the First Amendment, and When ‘Facts’ No Longer Matter


Think of the Susan B. Anthony List “right to lie” case as a trial balloon for future campaign and speech litigation. If successful in their challenge, and there’s reason to think the anti-choice advocacy group will be, not only can we expect to see a lot more challenges to state laws that try to keep political speech as truthful as possible, we can expect to see the religious right push even further the limits of the First Amendment in advancing its cultural agenda.

At issue in the case is Ohio’s “false statements” law, which makes it a crime during a political campaign to make a false statement about the voting record of a candidate or public official and makes it illegal to disseminate any false statements about a candidate, either knowing it is false or with reckless disregard for whether it is true, with the goal of electing or defeating the candidate. It was Ohio’s “false statements” law that the SBA List claims prevented the organization in 2010 from putting up billboards accusing then Rep. Steve Driehaus (D-OH), a self-identified “pro-life Democrat,” of voting for “taxpayer funding for abortion” because he supported the Affordable Care Act (ACA). The group also ran radio ads with the same message. The SBA List insists its proposed billboard was truthful, as were its radio ads, because the group “reasonably believes” the ACA covers abortion care. However, taxpayer funding of abortion is prohibited by federal law, and the Affordable Care Act requires any private health insurers in exchanges that do offer abortion coverage to segregate funds for abortion coverage under a separate, special set of rules.

As a result of the attack ads, Driehaus filed a complaint with the Ohio Elections Commission, which has the power to enforce the state’s truth-in-politics law. After a preliminary vote, the commission sided with Driehaus and was set to prosecute the SBA List for running ads in violation of the law. But before any prosecution could move forward, Driehaus lost his re-election bid and dropped his complaint against the SBA List.

The SBA List went ahead and sued in federal court, claiming that the Ohio law violated the group’s First Amendment political speech rights by unconstitutionally limiting their right to criticize elected officials. The group denied their claims against Driehaus were false, and claimed that fear of prosecution under the Ohio law deterred the group from moving forward with its billboard campaign. A lower court dismissed the SBA List’s claims, holding in essence there was no proof the group was harmed so it had no legal standing to sue. The U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal, but the Supreme Court agreed to hear the challenge in January.

At the outset, it’s important to note that the chances of the Roberts Court getting to the heart of the Ohio law and answering the “right to lie” question are slim. This case is almost entirely about what the law calls “justiciability,” meaning whether there is a legal issue ripe for a decision because there exists a controversy with an injured party that the court can address. In this case, the question is whether or not the SBA List needed to wait until a prosecution under the Ohio law actually happened before it could bring its constitutional challenge. Was the organization “damaged” under the law since the elections complaint was ultimately dismissed and the organization was never prosecuted? Or is it enough that the group simply faced the threat of prosecution for it to claim an injury and thus challenge the law’s constitutionality? This should be the limits of the Roberts Court inquiry. Will it be though?

Just because the case is teed up principally as a procedural challenge doesn’t mean the issue of truth and political speech isn’t lurking in a dangerous way here. It is. Which is why it’s important that the challenge to the Ohio law comes from the anti-choice, anti-health-care right, and even more important that the fight centers on whether or not some groups can purposefully mislead others in order to deny them access to health care. That’s because all the culture war battles before the Roberts Court this term are framed as First Amendment challenges. In McCullen v. Coakley, the anti-choice right wants a First Amendment right to harass patients entering and exiting reproductive health-care facilities. In Hobby Lobby and Conestoga Wood Specialties, they want corporations to have a First Amendment right to exercise religious rights as a means to deny employees access to comprehensive insurance care that includes contraception. And in this case, they want, ultimately, a First Amendment right to lie about the law—here the perennial favorite for scare-mongering, taxpayer funding for abortion—in addition to a candidate’s record.

To get there, in each of these cases, the anti-choice right has claimed in some way that the actual facts of a particular issue don’t matter as much as their reasonable belief of those facts do. In Hobby Lobby, the challengers argued that it didn’t matter that the medical science undisputedly shows Plan B is not an abortifacient. What mattered, they claimed, was that they reasonably believed that it did. In McCullen, those challenging the constitutionality of buffer zones argued that it didn’t matter that most clinic protesters are not “plump grandmas” who like to “speak softly” to patients and providers at health-care clinics. What matters is their reasonable belief that “sidewalk counseling” is not a form of wholesale assault. And here, it doesn’t matter that the SBA List can’t show that the Ohio law actually chilled their speech by preventing them from running the billboards. What matters, they claim, is their reasonable belief that it would.

It’s a tired truism, but it is worth repeating: Facts matter. There are no constitutional protections for false equivalencies, which is, ultimately, what the religious right advocates for when it pits objective facts against “reasonable beliefs” in all of these cases. And even if the Roberts Court never rules on the ultimate factual disputes, like whether or not Plan B is an abortifacient or whether or not the Affordable Care Act amounts to taxpayer funding of abortion coverage, the fact remains that religious conservatives have already succeeded just by getting the courts and the public to accept their argument that the facts are up for debate at all.

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