by Bob Lackner

Currently some 16 states, including Colorado, make it a crime to make false statements in political campaigns. In the recently decided case of Susan B. Anthony List v. Driehaus, No. 13-193 (U.S. June 16, 2014), the U.S. Supreme Court addressed the ground rules that govern when a person chooses to challenge the constitutionality of one of those laws. The court held that a group may have standing to claim the protections of the First Amendment before being convicted of the crime of issuing false statements during a political campaign if the group that challenges the law is accused of violating the law and is likely to be accused of violating the law again.

Case background

The case arose out of the Congressional approval of the Affordable Care Act (ACA), (more commonly known and referred to as “Obamacare”) in 2010. When the United States House of Representatives gave its approval to the ACA, one of the Democrats voting for the legislation was Rep. Steven L. Driehaus.

In the 2010 general election campaign, an advocacy organization that is opposed to abortions, the Susan B. Anthony List (SBA), publicly criticized members of Congress who voted for the ACA. SBA sought to display a billboard in Driehaus’s district that would proclaim: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The billboard never went up because the company owning the space backed down when a lawyer for Driehaus threatened to sue, claiming the message misrepresented the Congressman’s vote.

In October, 2010, Driehaus filed a complaint with the Ohio Election Commission (OEC) alleging that SBA had violated the Ohio law proscribing false statements in election campaigns by stating that he had voted for “taxpayer-funded abortion.” Driehaus complained to the OEC that SBA’s statements were false because his vote was for the Act as a whole and not explicitly for the funding of abortions. A panel of the OEC found probable cause that SBA had violated the statute.

The Ohio law makes it a crime for a person (1) to knowingly and with the intent to affect the outcome of the campaign make a false statement concerning the voting record of a candidate or public official or (2) to distribute a false statement concerning a candidate either knowing it to be false or with reckless disregard of whether it is false. If the OEC determines that a party has violated the false statement law, it must refer the matter to a county prosecutor. Thus, the statute empowers the OEC to police the falsity of statements made in election campaigns. The first conviction carries with it a penalty of criminal imprisonment and a heavy fine. A second conviction results in a mandatory penalty of disenfranchisement.

After the panel’s probable cause determination but before the final hearing on Driehaus’s OEC complaint, SBA brought a lawsuit in federal court challenging the Ohio statute on First Amendment grounds. But before the OEC completed its proceedings in November 2010, Driehaus lost his bid for reelection to the House, and the OEC dismissed his complaint at his request.

The District Court consolidated SBA’s lawsuit with a separate one brought by another advocacy organization, the Coalition Opposed to Additional Spending and Taxes (COAST), which had wanted to send out emails and other materials criticizing Driehaus’s vote for the ACA on the same grounds.

The organizations appealed adverse rulings in the lower courts to the U.S. Supreme Court. As is often the case, the actual legal question before the Supreme Court was a preliminary one: Are SBA and COAST entitled to pursue a legal challenge to the Ohio law at all?

Analysis by the Supreme Court

The issue before the Supreme Court was whether the two organizations had demonstrated a sufficiently concrete injury to have their case heard in federal court. In other words, the question is whether they had standing to sue. In a unanimous opinion authored by Justice Clarence Thomas, the Court held that SBA and COAST alleged a sufficiently imminent injury to be able to challenge the Ohio false statement statute.

To satisfy the injury-in-fact component of standing, the Supreme Court has previously held that a plaintiff must allege “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and [that] there exists a credible threat of prosecution thereunder.” SBA, Slip. Op., at p. 9. “When an individual is subject to such threat, an actual arrest, prosecution or other enforcement action is not a prerequisite to challenging the law.” Id., at p. 8. In this case, the Court found that the groups had standing because of the combination of the threat of the burdensome Commission proceedings and the additional threat of criminal prosecution. Id., at p. 16. Because SBA and COAST alleged a credible threat of enforcement, they satisfied this component of the standing requirements. Id., at p. 17.

The Supreme Court sent the matter back to the lower courts to determine whether the two groups could satisfy the other requirements for standing.

Colorado false statements in elections statute

As noted above, Colorado has a statute proscribing false statements in elections. Section 1-13-109 (1) (a), C.R.S., makes it a class 1 misdemeanor to:

knowingly make, publish, broadcast, or circulate or cause to be made, published, broadcasted, or circulated in any letter, circular, advertisement, or poster or in any other communication any false statement designed to affect the vote on any issue submitted to the electors at any election or relating to any candidate for election to public office.

Despite being on the books for decades, it appears that the Colorado statute has never been the subject of a legal challenge. But if the U.S. Supreme Court addresses the legality of false statements in election laws, the Colorado statute will certainly be affected by such a holding.

The whole idea of false statements in election laws — based on the idea that governmental actors are responsible for separating truth from falsehoods in political speech — seems difficult to square with free speech principles. Now that the highest court in the land has authorized these two groups to press forward with their constitutional challenge, we may receive over the next few years a final determination of whether the First Amendment prohibits these types of laws.