The Supreme Court is set to address whether the age-old act of political mudslinging and false accusations are a crime, with the fate -- or at least the tone -- of campaign attack ads at stake.
The case brings into conflict two deeply held constitutional values: the right of wide open and unlimited speech, particularly in a political realm, and the notion of protecting the truth — especially when a person's charter character is maligned.
The high court on Tuesday is scheduled to hear oral arguments for Susan B. Anthony List v. Driehaus, which centers on a dispute between former Rep. Steve Driehaus and the anti-abortion group, which waged an aggressive attack on the Ohio Democrat's failed re-election bid in 2010.
The Ohio Democrat filed a complaint with state election officials that the signs were illegal under Ohio’s "false statements" law. The billboard company, not wanting to be added to the complaint, refused to put up the signs.
The Susan B. Anthony List challenged the state law governing false claims as unconstitutional, saying it violated its First Amendment free-speech rights.
The group said that allowing a state agency to determine what can and cannot be said during political campaigns amounts to a de facto "Ministry of Truth."
"Allowing the government to serve as arbiter of political 'truth' cannot be squared with basic free-speech principles," said the Susan B. Anthony List in its brief to the Supreme Court.
About one-third of states have similar statutes prohibiting "false" statements made during political campaigns — often, as in Ohio, with criminal sanctions attached.
But Driehaus has accused the Susan B. Anthony List of costing him his livelihood and his job in Congress because of the group's attacks against him. The group said in 2011 it spent about $200,000 on radio spots, mailers, telephone calls and other methods to oppose his campaign.
In an interview with the Associated Press, the former lawmaker said the Ohio elections commission is needed "to call people into account when spreading malicious lies."
"Not every candidate has millions of dollars to spend on TV ads, and it's difficult to get the truth out, especially when constituents are bombarded with messages," Driehaus said from Swaziland, where he now is a Peace Corps director.
Some legal experts say the Ohio election law is legally vulnerable because it doesn't distinguish between a defamatory statement — something a person knowingly says is untrue, or they don't care if it's true or not — and a non-defamatory accusation.
Jamie Raskin, a constitutional law professor at American University, said general anti-defamation and libel laws already offer political candidates legal recourse against defamation.
"If defamation is the only acceptable constitutional exception, you don't need a separate law," he said. "Somebody defames you in the course of campaign, you can sue them for it later."
Raskin suspects the Ohio law is "in trouble" because "it appears to put the government in control of the legitimacy or illegitimacy of campaign speech."
"There is a strong First Amendment principle that speech, especially in the campaign context, must be robust and uninhibited by the government action," he said. "I imagine the Supreme Court will be suspicious of a law that appears to be directly chilling the free play of ideas in a campaign arena."
The ACLU called the Ohio law “vague and overbroad" and that it has "chilled" free speech.
The civil liberties group added the law has caused "significant hardships" for the Susan B. Anthony List because the group has "experienced difficulty finding venues to disseminate its message because vendors are afraid of prosecution under the challenged statute."
The Obama administration also backs the Susan B. Anthony List's argument that the law would stifle "the very type of speech to which the First Amendment 'has its fullest and most urgent application.'"
The administration, however, denies the health care law allows abortions funded by taxpayer dollars.