CFJ — Pro-life group Susan B. Anthony List (SBAL) scored a victory at the Supreme Court today in a case that arose when SBAL announced plans to put up billboards criticizing Congressman Steve Driehaus (D-Ohio), for his vote on “taxpayer-funded abortion” (ObamaCare), during his 2010 reelection campaign. Driehaus filed a complaint under an Ohio law making it a crime to “make a false statement concerning the voting record of a candidate or public official” during a campaign.
SBAL filed suit, seeking to strike down the Ohio law as a violation of the First Amendment. However, after Driehaus lost his race and withdrew his complaint, the lower courts prevented SBAL from pursuing its First Amendment claim, saying it was not ripe (more details here). Today, the Supreme Court unanimously reversed.
Though the Court’s unanimity was not completely unexpected – after oral argument, Curt Levey of the Committee For Justice (CJF) noted that “with the possible exception of Justice Sonia Sotomayor, a clear majority of the justices appeared to agree with [SBAL’s] position” – it was good news coming from a Court that typically divides 5-4 when faced with anything connected to abortion or the regulation of campaign speech.
Also good news was the Supreme Court’s reminder today that burdens “impose[d] on electoral speech are of particular concern here.” That statement should not be surprising given that the Court has long held that electoral speech is at the “core” of the First Amendment and that “exacting scrutiny” must be applied to any attempt to limit it. Nonetheless, the Court’s reminder is useful given the many people who wouldn’t think to limit free speech in general but think such limits are a great idea when it comes to electoral speech.
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These proponents of greater campaign finance regulation would answer that they are trying to regulate money not speech. But would the Ohio law’s chilling effect on SBAL’s speech have been any less if, instead of threatening sanctions for the billboards, Ohio threatened to sanction SBAL for spending money on the billboards? In a world where virtually all electoral speech requires money, the government’s power to control the money spent on electoral speech IS the power to control the speech itself.
To those who say they only want to ensure that campaign contributions and spending are reasonable, we ask two questions. One, how many billboards does it take before the cost is unreasonable? And two, do you support the constitutional amendment sponsored by 42 Senate Democrats that would override the First Amendment by empowering the government to “regulate the raising and spending of money” on campaigns without regard for reasonableness or the amount of money involved? If the amendment were enacted, even a single billboard of the kind at issue in today’s case would lose its First Amendment protection if it required the spending of any money.(The Committee for Justice (CFJ), with more than 200,000 members and supporters is America’s largest and most influential conservative legal and legislative action organization dedicated to holding America’s political leaders accountable to the law and the Constitution.)
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