The U.S. Supreme Court on Tuesday will hear arguments on an Ohio law that criminalizes deliberate lies about political candidates in a high-profile case that could overturn campaign speech restrictions around the nation. The controversy over whether Ohio’s law violates free speech has forged unlikely allies of the abortion-rights American Civil Liberties Union and the anti-abortion Susan B. Anthony List. It has also pitted Ohio Attorney General Mike DeWine against himself as he defends the law in his official capacity while criticizing the law in a separate court filing. Even political satirist P. J. O’Rourke has weighed in with a U.S. Supreme Court brief that claims “the law at issue undermines the First Amendment’s protection of the serious business of making politics funny. Laws like Ohio’s here, which criminalize ‘false’ speech, do not replace truthiness, satire and snark with high-minded ideas and ‘just the facts,’ ” it continues. “Instead, they chill speech such that spin becomes silence.” Violations of Ohio’s law against political lies are considered a first-degree misdemeanor, punishable by a penalty of up to six months in jail and a $5,000 fine.
The court might not rule on the law’s constitutionality after hearing next week’s arguments. Legal experts say it may well limit its decision to the narrower issue of whether a party that hasn’t been convicted of violating the law can challenge it. At least 15 other states have similar laws, and the group challenging Ohio’s law says all “are almost certainly unconstitutional.”
Ohio State University election law expert Daniel Tokaji predicts the court will reverse lower court decisions that said the Susan B. Anthony List couldn’t challenge the law on constitutional grounds because it wasn’t found guilty of a violation.
“It could be unanimous,” Tokaji predicts. “One of the big things to look for at argument is whether or not the justices tip their hands much on the merits, or confine themselves to the standing issues.”