Thursday, April 17, 2014
Next week the US Supreme Court hears argument in Susan B. Anthony List v. Driehaus. The case involves an election campaign attack ad by the anti-abortion group, Susan B. Anthony List, which arranged to post a billboard sign against then-Congressional representative Steve Driehaus to read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The claim was based very loosely on Driehaus's vote for Obamacare, even though that federal healthcare law prohibits taxpayer funding of abortion. But never mind the facts.
Ohio has a truth-in-election law that prohibits false statements in a campaign. Ohio Rev. Code § 3517.21 (eff. 1995). The election comission sided with Driehaus. Much of the case now before the Supreme Court is procedural. The state of Ohio"borked" by filing dualing briefs, it's required brief in defense of the law and also an amicus brief challenging it on First Amendment grounds.
So is this case really about a First Amendment right to lie? Even the petitioner's name is a lie, since nineteenth-century feminist Susan B. Anthony did not advocate anti-abortion positions, or really say much about abortion at all, as I and other scholars have explained. Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle Law Rev. 1, 15 (2012); Ann Gordon & Lynn Sherr, Sarah Palin is No Susan B. Anthony, Wash. Post Blog, May 21, 2010.