The Ohio statute permits “any person” to bring an action for “falsity” to the Ohio Elections Commission, which must then determine whether there is “probable cause” (meaning “reasonable suspicion”) that the statement was knowingly or recklessly false. If so, a full hearing will be held within 10 days, and if the panel at the hearing agrees, the case is referred for criminal prosecution.
Then-Representative Steve Driehaus, a Democrat, voted for the Affordable Care Act. A pro-life group, Susan B. Anthony List, or SBA, issued a press release stating that Driehaus “voted FOR taxpayer-funded abortion.” It also bought radio time and contracted for a billboard to spread the word.
Driehaus complained to the commission, and got the outdoor-sign company to cancel the contract by threatening a complaint against it. Before the election, a commission panel found probable cause that SBA had deliberately or recklessly lied. Driehaus agreed to postpone the full hearing until after the election. He lost his seat, dropped his complaint, and joined the Peace Corps.
SBA had asked a federal court to block enforcement of the law. After the vote, however, the district court dismissed the request on the grounds that SBA was no longer in jeopardy of enforcement, and the Sixth Circuit affirmed it. The federal doctrine of “standing to sue” requires that a plaintiff challenging a law actually be hurt by it, rather than just not liking it. SBA said it planned to run “taxpayer-funded abortion” ads against other Democrats, and might face complaints to the commission again. The lower courts called that speculation. Anyway, SBA claimed its speech was true, the panel reasoned: SBA “does not say that it plans to lie or recklessly disregard the veracity of its speech.” Only if it admitted it planned to lie would it have standing to bring the suit.
Here is the First Amendment nub of the case, summed up by Lord Bacon in 1597: “‘What is Truth?’ said jesting Pilate, and would not stay for an answer.” Does the ACA provide for “taxpayer-funded abortions”? The law says not—its insurance subsidies must be “segregated” from any private-insurance funds that cover policyholders for abortion services. But SBA (and its co-plaintiff, the Coalition Opposed to Additional Spending and Taxes, or COAST) insist that it does, since the insurance companies will have the money in the “segregated funds” and can then set aside other money from premiums to cover abortion.
Who’s right? You decide.
And that—who decides—is the First Amendment issue behind this case. There is no clear “right to lie,” but a lot of precedent—and simple common sense—suggest it’s a bad idea to allow government officials to determine truth and threaten designated “liars” with jail. In fact, the existence of the law affects politics, even if no one is ever prosecuted; candidates can complain, get a “probable cause” ruling, and then proclaim that an opponent or critic has “lied.”