In 1995, the Ohio legislature passed SB 9, which says “No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly…make a false statement concerning the voting record of a candidate or public official.” Ever since enactment, this law has been the subject of lawsuits over how it should be interpreted, and whether it is constitutional. A fresh onslaught against the law is pending in the 6th circuit, Susan B. Anthony List v Steven Driehaus, 11-3894.

The new lawsuit was triggered when Democratic Congressman Steven Driehaus filed a complaint in 2010 (while he was running for re-election) against the Susan B. Anthony List, which intended to run billboards that said, “Shame on Steve Driehaus! Driehaus voted for taxpayer-funded abortion.” The Susan B. Anthony List is a pro-life political organization. Enforcement of the Ohio law is in the hands of the Ohio Election Commission, which is composed of political appointees. Although Driehaus held himself out as a pro-life member of Congress, he voted for President Obama’s health care bill. He said that because President Obama promptly issued a regulation banning use of federal funds to pay for abortion, he did not vote for taxpayer-funded abortion, and the billboard message was therefore false. The Anthony List points out that federal regulations can be withdrawn, and defends the essential accuracy of its proposed billboards, which were never erected due to the legal threat.

The Anthony List then filed a lawsuit in U.S. District Court in Cincinnati, arguing that the Ohio law, criminalizing untrue messages in campaigns, is unconstitutional, at least as applied in this situation. The case is Susan B. Anthony List v Driehaus and Ohio Elections Commission, 1:10-cv-754. Congressman Driehaus was defeated for re-election in November 2010, and in December he withdrew his complaint that had been pending in the Ohio Elections Commission. But, he then countersued in the pending federal case, and charged the list with defamation and loss of livelihood.
The case was assigned to U.S. District Court Judge Timothy S. Black, who ruled on August 1 on procedural grounds (standing, ripeness, 11th amendment, among others) that the List’s lawsuit against the law should be dismissed. Given that the law was therefore still intact, he said the Driehaus defamation lawsuit against the List could proceed, and permitted discovery on whether the List had an animus against Driehaus.

The List has now asked the 11th circuit to reverse the U.S. District Court’s decision that said the List’s lawsuit against the Ohio law should be dismissed. The lawsuit is getting a great deal of publicity, especially on television public affairs programs with hosts who are angry with Driehaus. Driehaus is now working overseas in the Peace Corps. Judge Black has been criticized for not recusing himself, since between 1986 and 1989 he was President and Director of Planned Parenthood Association of Cincinnati. Thanks to Eric Garris for this news.