An attorney for a pro-life organization, as well as a U.S. Supreme Court Justice, recently invoked the ominous image of George Orwell’s 1984 “Ministry of Truth” during a recent oral argument before the High Court. In a fight against an Ohio law to prohibit “false statements” during political campaigns, pro-life Susan B. Anthony (SBA) List’s lawyer, Michael Carvin, declared, “Our constitutional claim here is the ministry of truth has no ability to judge our political speech as falsity.”
SBA List’s case originated after then-Congressman Steve Driehaus (D-OH) filed a complaint with the Ohio Election Commission in 2010 that the pro-life group was lying about his record when it was preparing billboard ads to highlight his vote in support of the Affordable Care Act (also known as “Obamacare”) as one authorizing use of taxpayer funds for abortion. A panel of the commission found “probable cause” of a false statement and referred the complaint to the full commission. However, the proceeding ended after Rep. Driehaus lost his election and dropped the complaint.
The question before the Supreme Court in Susan B. Anthony List v. Driehaus began as one of standing for an organization that had not felt the brunt of the Ohio law (fines and possibly imprisonment). However, the Justices clearly were interested in the underlying constitutional issue. Justice Ruth Bader Ginsburg pointedly observed, “[W]hat about the harm that is occurring? …They're brought before the commission, they have to answer this charge that they lied…. just that alone is going to diminish the effect of their speech because they have been labeled false speakers, and it costs money to defend before the commission, right?” Justice Elena Kagan similarly stated, “There are voters out there… [who] think probable cause means you probably lied, and that seems a reasonable thing for them to think… we don't even need the prosecution to serve as the relevant harm. That seems quite enough.” On the other end of the Court’s spectrum, Justice Antonin Scalia also showed concern, stating, “The mere fact that a private individual can chill somebody's speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it.”
If the Supreme Court rules in favor of SBA List’s standing claim, it will overturn a Sixth Circuit Court of Appeals decision against the pro-life group. The organization would then be able to begin court proceedings challenging the substance of the Ohio law. Prior to the oral argument, SBA List President Marjorie Dannenfelser declared, “Free speech is the qualifier for any argument, including our argument, abortion. If we can’t take that for granted, then we have no ability to argue that abortion is the taking of the life of a person equal to you and me.”
By Aaron Mercer, Vice President of Government Relations
Published: May 2, 2014