The Right to Lie in Campaigns Is Safe, for Now.

The Supreme Court ruled unanimously that a First Amendment case over “false” ads can continue.

The United States Supreme Court announced a ruling in the case Hall v. Florida, finding that the state had adopted too rigid a cutoff in deciding who is eligible to be spared the death penalty because of intellectual disabilities, May 27, 2014 in Washington, DC.
National Journal
June 16, 2014, 7:11 a.m.

Add an­oth­er wrinkle to the in­san­ity that is the 2014 midterms: Courts will still be de­cid­ing wheth­er states have the right to re­strict “false” cam­paign ads.

The Su­preme Court on Monday ducked the biggest ques­tions in a po­ten­tially sig­ni­fic­ant First Amend­ment case about polit­ic­al at­tack ads and how state gov­ern­ments can reg­u­late them. But it said those is­sues should con­tin­ue to play out in lower courts.

This all star­ted with an anti-Obama­care bill­board in 2010. The Susan B. An­thony List, an anti-abor­tion-rights group, wanted to put up a bill­board at­tack­ing then-Rep. Steve Driehaus over his vote for the Af­ford­able Care Act.  “Shame on Steve Driehaus! Driehaus voted FOR tax­pay­er-fun­ded abor­tion,” the bill­board read.

Driehaus said the at­tack was false, and his state — Ohio — bans false ads.

SBA List nev­er put up the bill­board in ques­tion, but it chal­lenged the Ohio law as un­con­sti­tu­tion­al. State gov­ern­ments have no busi­ness de­cid­ing what can be said in a polit­ic­al cam­paign, or serving as the ar­bit­ers of what’s true or false, SBA List ar­gued.

A fed­er­al ap­peals court tossed out SBA List’s suit on pro­ced­ur­al grounds. The Su­preme Court re­versed that de­cision in a un­an­im­ous rul­ing Monday, say­ing the suit can pro­ceed.

Fif­teen states have laws sim­il­ar to Ohio’s, all of which could hang in the bal­ance as courts con­tin­ue to ques­tion wheth­er such laws are con­sti­tu­tion­al.

In 2010, Driehaus filed a com­plaint with Ohio’s elec­tion com­mis­sion and also pres­sured the bill­board own­er not to ac­cept SBA List’s ad. Be­cause the ad nev­er went up, the elec­tion com­mis­sion nev­er ruled. And that means SBA List’s at­tack was nev­er ac­tu­ally deemed true or false.

So, to chal­lenge Ohio’s law, SBA List had to ar­gue that the whole mess with Driehaus was chilling its fu­ture speech — that it wants to run sim­il­ar ads in the fu­ture and could face en­force­ment from Ohio’s ban on “false” at­tacks. And of course, SBA List be­lieves its at­tack is en­tirely true, cit­ing the struc­ture of the health care law’s in­sur­ance sub­sidies, which calls in­to ques­tion wheth­er an at­tack like this one could ever be ruled defin­it­ively true or false.

The lower court said SBA List’s ar­gu­ment was too hy­po­thet­ic­al — without an ac­tu­al rul­ing from the elec­tion com­mis­sion, SBA List hadn’t been in­jured, the court said. And if it hadn’t been in­jured, it couldn’t sue.

The Su­preme Court re­jec­ted that reas­on­ing. Justice Clar­ence Thomas, who wrote the un­an­im­ous opin­ion, cited past cases in which the Court al­lowed “pre-en­force­ment” chal­lenges.

When a state law re­stricts activ­ity pro­tec­ted by the Con­sti­tu­tion, the Court has said that the threat of pro­sec­u­tion is enough of an in­jury to sup­port a law­suit, Thomas wrote.

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