A Monday Supreme Court opinion should send a message to Nevada judges. The court reversed and remanded a case out of Ohio that involved a law making it a crime for any person to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not” during the course of a political campaign.
Recently a Nevada judge forced a state Senate candidate in the Republican primary to stop running a television commercial saying his opponent was a supporter of Harry Reid.
A group called the Susan B. Anthony List attempted to erect a billboard in Ohio during the 2010 election season criticizing Rep. Steve Driehaus for voting for ObamaCare and thus supporting taxpayer-funded abortion. Driehaus got the Ohio Elections Commission to threaten the billboard company and the billboard was never posted.
Susan B. Anthony List sued saying the law abridged its First Amendment rights.
Writing the high court’s unanimous opinion, Justice Clarence Thomas said a “Commission panel here already found probable cause to believe that SBA (Susan B. Anthony) violated the statute when it stated that Driehaus had supported ‘taxpayer-funded abortion’ — the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners’ intended speech is ‘arguably proscribed’ by the law.”
Considering ObamaCare dictates the coverage of abortifacients, the statement about tax-payer funded abortion might well be considered true by many.
Just as Nevada state Senate candidate Gary Schmidt’s claims about opponent Ben Kieckhefer were not proven untrue merely by the absence of his name on a list of Republicans for Reid. No one has found any evidence he supported Reid’s opponent, while he told a newspaper reporter he intended to support Reid backer Bill Raggio’s bid to retain a Republican leadership position.
But the judge in the case wrote, “Ben Kieckhefer is likely to suffer irreparable injury to his career and reputation from defendant’s television advertisements.” Being associated with our senior U.S. senator can do that.
Truth in an election campaign is not something for a commission or a judge to decide. That is for the voters to determine. There may yet be further court proceedings in this matter.
Justice Thomas also noted:
“The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the ‘practical effect’ of the Ohio false statement scheme is ‘to permit a private complainant … to gain a campaign advantage without ever having to prove the falsity of a statement.’ … ‘[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.’ … Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, ‘such a determination itself may be viewed [by the electorate] as a sanction by theState.'”
Driehaus lost. Kieckhefer won.