Scalia: Political Speech Advances Values, Not Personal Attacks

April 22, 2014 - 5:38 PM

Rep. Steve Driehaus

Rep. Steve Driehaus (D-Ohio) (AP Photo/David Kohl, File)

( – During oral arguments at the Supreme Court Tuesday, the justices appeared skeptical of an Ohio law that bars people from making false statements about political candidates.

The Susan B. Anthony List, a pro-life group, is challenging the law on First Amendment grounds.

The case dates to 2010, when the Susan B. Anthony List planned to run a billboard advertisement accusing then-Rep. Steven Driehaus (D-Ohio) of supporting taxpayer-funded abortion because he voted for the Affordable Care Act. Driehaus filed a complaint with the Ohio Elections Commission, saying the ad would violate Ohio election law.

On Tuesday, conservative Justice Antonin Scalia said the group's opposition to Driehaus wasn’t personal but rather stemmed from his support for the Affordable Care Act:

“Their organization is not an anti-Driehaus. Is that his name, Driehaus?” Scalia asked.

“Yes, your Honor,” said Eric Murphy, the attorney representing the state of Ohio.

"That’s not what [SBA List is] about,” Scalia said. “They are about opposition to the abortion funding portion of the Affordable Care Act, and they’re going to make the same -- the same contentions against anybody else who runs for office who voted for the Act, whether it's Driehaus or anybody else.”

Driehaus did not win re-election in 2010, and he ended up dropping his complaint against the Susan B. Anthony List before the Ohio Election Commission could issue a ruling. But the SBA List nevertheless continued its challenge to the Ohio law, arguing that it “chilled” its free speech and free association rights.

On Tuesday, most of the justices – liberal and conservative -- expressed concern that the Ohio law violates the Constitution’s First Amendment guarantee of free speech.

“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 power to find out who’s involved in your association, what research you’ve made, et cetera?” Justice Anthony Kennedy asked Murphy.

“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,” Justice Stephen Breyer interjected. “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.”

Michael Carvin, the attorney for SBA List, said free speech in the political arena is “the core of the First Amendment.”

“This is how we choose our representatives in our democracy,” Carvin said.

“We were very excited by the tenor of the conversation among the justices back and forth between the attorneys,” Marjorie Dannenfelser, president of SBA List, told after the hearing. “We think that there is a general sense that there is a problem in terms of the First Amendment on this law.”

Although the justices appeared critical of the Ohio law, the law itself is not the issue before the court. The Justices are expected to rule on whether the Susan B. Anthony list may challenge a law it hasn't been convicted of violating.