Anti-Obamacare Ad Lands at the Supreme Court

A billboard opposing the health care law touched off a potentially major First Amendment case.

WASHINGTON, DC - MARCH 27: Sisters and Tea Party members of Atlanta, Georgia, Judy Burel (L) and Janis Haddon (R), protest the Obamacare in front of the U.S. Supreme Court March 27, 2012 in Washington, DC. The Supreme Court continued to hear oral arguments on the Patient Protection and Affordable Care Act. (Photo by Alex Wong/Getty Images)
National Journal
Sam Baker
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Sam Baker
April 21, 2014, 4:03 p.m.

The Su­preme Court is set to hear ar­gu­ments Tues­day over the First Amend­ment and false cam­paign at­tacks — and it all star­ted with an anti-Obama­care bill­board.

The bill­board nev­er went up, and the can­did­ate it would have at­tacked lost any­way. But the elec­tion-year spat has mush­roomed in­to an ar­gu­ment about free­dom of speech that could have ser­i­ous long-term im­plic­a­tions.

A rul­ing is ex­pec­ted in June, just in time for midterm elec­tions that have already seen a flood of anti-Obama­care ads — in­clud­ing sev­er­al that may not be en­tirely ac­cur­ate.

The justices will hear or­al ar­gu­ments Tues­day morn­ing in a case that pits former Rep. Steve Driehaus, a Demo­crat from Ohio, against the Susan B. An­thony List, a prom­in­ent ad­vocacy group that op­poses abor­tion rights.

It all star­ted in 2010, after Driehaus voted for the Af­ford­able Care Act. Shortly be­fore the 2010 elec­tions, SBA List set out to buy a bill­board in Driehaus’s dis­trict that said, “Shame on Steve Driehaus! Driehaus voted FOR tax­pay­er-fun­ded abor­tion.”

Driehaus — who cam­paigned as a “pro-life” can­did­ate — took ex­cep­tion, con­vinced the bill­board com­pany not to ac­cept SBA List’s ad, and filed a com­plaint with Ohio’s elec­tion com­mis­sion, say­ing the bill­board vi­ol­ated a ban on false state­ments in polit­ic­al ad­vert­ising. State law pro­hib­its cam­paign ma­ter­i­als that “make a false state­ment con­cern­ing the vot­ing re­cord of a can­did­ate or pub­lic of­fi­cial.”

Now the is­sue is much big­ger than one bill­board. It’s be­come a fight about wheth­er Ohio — and the 15 states that have sim­il­ar laws — even have the right to reg­u­late cam­paign ads in the first place, or to pass judg­ment on what is or isn’t a “false” at­tack.

Tech­nic­ally, the ques­tions be­fore the justices on Tues­day are nar­row­er is­sues of leg­al stand­ing. But the case could eas­ily be pulled to­ward broad­er First Amend­ment is­sues, and a slew of out­side briefs are aim­ing to push the Court in that dir­ec­tion.

Cit­izens United — the biggest win­ner yet in the Roberts Court’s rul­ings about polit­ic­al speech — filed a brief ar­guing that the Court simply had to strike down Ohio’s elec­tion law as a vi­ol­a­tion of the First Amend­ment.

“Ohio has no jur­is­dic­tion to po­lice the mar­ket­place of ideas,” Cit­izens United wrote.

Lower courts dis­missed SBA List’s chal­lenges on pro­ced­ur­al grounds.

Be­cause Driehaus con­vinced the bill­board own­er not to run SBA List’s ad, the Ohio elec­tion com­mis­sion nev­er ruled on its truth­ful­ness. So in chal­len­ging Ohio’s law, SBA List had to ar­gue that it was chilling fu­ture speech — that the or­gan­iz­a­tion would like to run an­oth­er ad in the fu­ture, and the Ohio law might be en­forced against that ad.

A fed­er­al ap­peals court said that kind of hy­po­thet­ic­al simply wasn’t good enough.

“Al­low­ing such a case to pro­ceed would re­quire us to guess about the con­tent and vera­city of SBA List’s as-yet un­ar­tic­u­lated state­ment, the chance an as-yet uniden­ti­fied can­did­ate against whom it is dir­ec­ted will file a Com­mis­sion com­plaint, and the odds that the Com­mis­sion will con­clude the state­ment vi­ol­ates Ohio law,” the 6th Cir­cuit Court of Ap­peals said in a de­cision dis­miss­ing SBA List’s claims.

Driehaus’s brief be­fore the Su­preme Court hews to largely the same ar­gu­ments, ar­guing that SBA List’s chal­lenge isn’t “ripe” be­cause the or­gan­iz­a­tion can’t show that it has been in­jured by the Ohio elec­tion law.

SBA List also said in court that its fu­ture ads would be true, which would the­or­et­ic­ally mean that the false-state­ments law wouldn’t in­ter­fere with them.

But that’s the catch: SBA List be­lieves its bill­board against Driehaus was truth­ful. So while the Su­preme Court is only ask­ing for ar­gu­ments about ripe­ness and stand­ing to sue, some briefs say it’s all but im­possible to de­cide those ques­tions without also ask­ing wheth­er state elec­tion com­mis­sions should have the power to block cer­tain polit­ic­al speech.

“Two Pinoc­chios out of five is OK, but three is il­leg­al?” the liber­tari­an Cato In­sti­tute wrote in a brief filed with con­ser­vat­ive hu­mor­ist P.J. O’Rourke.

Cato’s some­what un­usu­al brief is full of pat­ently false state­ments (“Pres­id­ent Obama was born in Kenya”) and in­vokes “truthi­ness” — Steph­en Col­bert’s term for state­ments that feel true, even if they’re not — to ex­pli­citly de­fend the role of mis­in­form­a­tion and ex­ag­ger­a­tion in cam­paigns.

“When a red-meat Re­pub­lic­an hears ‘Obama is a so­cial­ist,’ or a bleed­ing-heart Demo­crat hears, ‘Rom­ney wants to throw old wo­men out in the street,’ he is feel­ing a truth much more than think­ing one,” the brief says. “No gov­ern­ment agency can change this fact, and any at­tempt to do so will stifle im­port­ant polit­ic­al speech.”

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