WASHINGTON — When is it permissible to challenge laws that restrict campaign rhetoric and attack ads?

On April 22, that was the narrow legal issue before the U.S. Supreme Court, when it heard oral arguments in Susan B. Anthony v. Driehaus, pitting a leading activist group that raises money for national pro-life candidates against an Ohio state law that bars “false statements” from being made during political campaigns.

The justices weighed legal technicalities that will decide whether the Susan B. Anthony List has standing to pursue its First Amendment case. But the organization’s president, Marjorie Dannenfelser, contends that the closely watched case points to a more urgent and politically relevant matter: getting the truth out about federal funding of abortion through Obamacare.

“If it takes a few cups of coffee to understand all this, drink up. But remember that politics require — and must not be allowed to censor — debates like these,” argued Dannenfelser in an April 22 column in USA Today timed for the oral arguments.

“The verdict in Susan B. Anthony v. [Steven] Driehaus is not just about the differences in worldview between two sides in the abortion debate; it is about the liberty of every American — liberal, conservative and in-between — to make his or her case without fear of censorship and prosecution by the state.”

 

Affordable Care Act

The case dates back to 2010, when President Obama signed the Affordable Care Act (ACA), after issuing an executive order that barred federal funding of abortions in the new health law and thus defused resistance from pro-life Democrats in the House.

The pro-life movement was skeptical about the value of the executive order. Activists charged that it was designed to provide political cover for lawmakers, who feared they would be punished by their constituents for supporting a health law that did not include the Hyde Amendment’s ironclad language baring federal dollars for elective abortion.

Months later, the Susan B. Anthony List planned a billboard campaign for the 2010 midterm elections that targeted U.S. Rep. Steven Driehaus, D-Ohio, and framed his support for the law as a vote for “taxpayer-funded abortion.”

Driehaus threatened to prosecute the Susan B. Anthony List under Ohio law that bars “false statements” about political candidates, and the pro-life organization was then denied access to the billboard to post its campaign ad. Driehaus brought his complaint to the Ohio Election Commission, which sided with him — though the claim was dropped after he lost his seat to Republican Steve Chabot in the 2010 election.

The Susan B. Anthony List decided to challenge the law in court, arguing that the statute violated its First Amendment right to free speech, and its lawsuit has received backing from the American Civil Liberties Union.

On April 22, the oral arguments before the justices addressed the narrow legal question of “ripeness.” Could the group pursue its legal challenge at this time, given that it had not been prosecuted for violating Ohio’s “false statement” law?

 

Is the Claim ‘Ripe’?

David Langdon, a lawyer for the Susan B. Anthony List, told the Register that the high court agreed to determine whether “the claim is ‘ripe.’”

To that end, the justices weighed several questions. Could the Susan B. Anthony List and another activist group only challenge the law in court if they could prove that the state would have successfully prosecuted them — as the Sixth Circuit ruled? Or was it enough for the petitioner to have “probable cause” that they would be prosecuted under Ohio law?

But the broader and more interesting First Amendment issues posed by “false statement” laws enacted by Ohio and a number of other states also stirred discussion.

“The larger issue of concern is being able to engage in campaign speech — and more specifically, speech criticizing incumbents for their votes — without fear of being haled before a state commission which sits in judgment of the truth or falsity of their speech,” said Langdon.

During the oral arguments, Michael Carvin, the Jones Day lawyer representing the Susan B. Anthony List, linked Ohio’s law to the totalitarian system of state-sanctioned propaganda produced by the “ministry of truth” in George Orwell’s dystopian novel 1984.

“Our constitutional claim, here, is the ministry of truth has no ability to judge our political speech as falsity,” Carvin argued.

 

Scalia and Breyer Unsettled

Justices Antonin Scalia and Stephen Breyer were clearly unsettled by the law and the chilling effect it might have on campaign speech.

“What’s the harm?” Breyer asked. “I can’t speak; that’s the harm.”

Katie Short, the legal director of the Life Legal Defense Foundation, was among the pro-life activists who carefully monitored the hour-long oral arguments.

In her view, the majority of justices appeared to sympathize with the Susan B. Anthony’s arguments, while they were “hammering away at the Ohio Election Commission attorney,” suggested Short.

“By contrast, the questioning of the Susan B. Anthony attorney and the solicitor general struck me as being rather pro forma and just came from a few justices.”

The oral arguments were not expected to examine the substance of the Susan B. Anthony List’s disputed campaign ad, which linked a vote for Obamacare to a vote for federal funding of abortion.

Still, one brief exchange in the oral arguments touched on this issue and caught Short’s attention.

“Scalia asked Ohio Solicitor Eric Murphy, ‘Do you think that the allegedly false statement here was a false statement of fact?’” Short noted.

Murphy responded, “I think there’s a good argument that it was not … that there’s reasonable interpretations of this ambiguous Affordable Care Act.”

The Washington Post, in its coverage of the oral arguments, reported that Driehaus said the campaign ad was “false because the health-care law required that abortion be paid for by a separate account funded solely by enrollees, even though insurers of low-income families would be subsidized with federal money.”

 

Issue Remains Alive

On Capitol Hill, that question remains a live issue, with the U.S. Conference of Catholic Bishops and pro-life groups continuing to raise questions about how elective abortions are being paid for in the 26 state health exchanges that permit the procedure and offer policies subsidized by federal dollars.

Meanwhile, the Susan B. Anthony List has announced a new ad campaign, featuring billboards similar to the one that criticized Driehaus in 2010, to defeat three vulnerable Democratic senators who voted for Obamacare in the midterm elections.

Sens. Kay Hagan, D-N.C., Mary Landrieu, D-La., and Mark Pryor, D-Ark., will be singled out “for supporting taxpayer-funded abortion by voting for the Affordable Care Act.”

Joan Frawley Desmond is the Register’s senior editor.