WASHINGTON — The Supreme Court next week will consider for the first time whether states may enforce laws that make it a crime to knowingly publish false statements about political candidates.
The justices will hear an antiabortion group's free-speech challenge to an Ohio law that was invoked in 2010 by then-Rep. Steve Driehaus, a Democrat. He had voted for President Obama's healthcare law and was facing a tough race for reelection.
The antiabortion group Susan B. Anthony List launched a campaign to unseat Driehaus, preparing to run billboard ads saying, "Shame on Steve Driehaus! Driehaus voted for taxpayer-funded abortion."
The statement was false, Driehaus said, since under the law no federal funds can be spent to pay for abortions. He threatened to sue the billboard company, which decided against running the ad. Then he complained to the Ohio Elections Commission, which found "probable cause" that the statement was false.
Before a hearing could be convened before the full commission, Driehaus lost his reelection bid and withdrew his complaint.
But the antiabortion group pressed ahead and is urging the Supreme Court to clear the way for a constitutional attack on the Ohio law as well as similar measures in 15 other states.
The justices are not expected to rule on the 1st Amendment issue at this time. Instead, justices are being asked to decide whether these laws can be challenged as unconstitutional even if no one is successfully prosecuted.
The case has prompted a lively debate over whether the law can separate truth from lies in election campaigns.
Washington attorney Michael Carvin, representing the antiabortion group, said the 1st Amendment protects broad free speech during political campaigns and frowns on interference from the government. He calls the Ohio measure a "speech suppressive" law that "inserts state bureaucrats and judges into political debates and charges them with separating truth from oft-alleged 'lies.'"
He said the state commission receives several dozen complaints each year and warned that the law gives government bureaucrats the power to sway a close race simply by saying a complaint has merit.
The Ohio law says violators can be prosecuted and punished by up to six months in jail and a $5,000 fine. But Carvin and other election law experts say they are not aware of any successful prosecutions.
He told the court that 15 states have similar laws. They are Alaska, Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, Wisconsin and West Virginia.
He said these laws were "almost certainly unconstitutional." Two years ago, the high court threw out the conviction of a Southern California man, Xavier Alvarez, who falsely claimed to have been awarded the Medal of Honor. In a 6-3 ruling, the court said the prosecution violated the 1st Amendment, a decision that was largely overlooked because it was handed down on the same day President Obama's healthcare law was upheld.
Healthcare law experts say the debate over the Affordable Care Act has been hampered by many false and misleading claims, including the contention that it will fund abortions.
"That is not a true statement," said Timothy Jost, a law professor at Washington and Lee University in Virginia. "I hope the Supreme Court will not say that free speech protects your right to lie. At some point, you should not able to consciously lie about your opponent."
Since 1976, the Hyde Amendment has prohibited using federal funds to pay for abortions, except in cases of rape, incest or when the mother's life is in danger.
Last week, the Susan B. Anthony List said it was launching a new billboard campaign to attack three Democratic senators "who voted for abortion-funding Obamacare." The billboards will target Sens. Kay Hagan of North Carolina, Mary L. Landrieu of Louisiana and Mark Pryor of Arkansas, each of whom faces a tough reelection this year.
Marjorie Dannenfelser, the group's president, said its members "have fought to tell the truth about the abortion-funding problems in Obamacare." She said "millions of women will gain elective abortion coverage under Obamacare through the Medicaid expansion and new federal premium subsidies."
In states such as California, women who are added to the Medicaid rolls may receive coverage for abortion that is paid for with state funds. Women who purchase subsidized private health insurance may receive coverage for abortion, but they must pay for it separately.
Alina Salganicoff, director of women's health policy for the Kaiser Foundation, said although more women may have access to abortion coverage, it is not paid for with federal money. "It may be a complicated accounting system, but there is no federal subsidy for abortion services," she said. "The law is very clear on this."
The high court will hear arguments Tuesday in Susan B. Anthony List vs. Driehaus and will decide by late June whether the free-speech claim can proceed.