Breaking: Federal Court Strikes Down Ohio False Campaign Speech Statute: Analysis

On remand from the Supreme Court, a federal district court has decided the Susan B. Anthony List v. Driehaus case, granting a preliminary injunction and summary judgment to the challengers of the law.

The result in this case is not that much of a surprise and is in line with a recent 8th Circuit decision, the 281 Care Committee v. Arneson case, about which I blogged. Today’s case cites the 8th Circuit case.

The trial court decision relies almost exclusively on the Supreme Court’s opinion in the U.S. v. Alvarez case, which struck down the “Stolen Valor Act” on First Amendment grounds. That law made it a crime to lie about having won the Congressional Medal of Honor.

In A Constitutional Right to Lie in Campaigns and Elections?, I wrote specifically about the question of the relevance of Alvarez to the false campaign speech law in Ohio and elsewhere. There was no majority opinion in Alvarez, and there is some question as to whether Justices Breyer and Kagan, who concurred separately, might come out differently on the question of the law’s constitutionality. Justice Breyer specifically mentioned the difficult balancing question which comes up with laws involving false campaign speech: on the one hand there is the harm to the public from false statements; on the other hand there is a great risk when government regulates political speech. I was very surprised to see the judge in today’s opinion barely make mention of the separate Breyer opinion, or quote or analyze that language in the opinion.

In the end, this opinion might be affirmed by the 6th Circuit (despite earlier cases which upheld portions of Ohio’s law in the past). But I think a more subtle analysis of the issues presented here would have been in order.

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