Deirdre Shesgreen

USATODAY

Case involves whether groups have the right to sue over the law

Pro-life group planned to run billboards accusing candidate of supporting tax-payer funded abortions

Congressional candidate had sought ruling from state elections commission blocking the ads

WASHINGTON -- The U.S. Supreme Court agreed Friday to hear a case challenging an Ohio law that bars candidates and issue groups from lying in their campaigns.

The case, which touches on political speech, involves a 2010 legal tangle between Steve Driehaus, a Democrat running for re-election to Congress, and the Susan B. Anthony List, a political group devoted to electing pro-life candidates.

The high court will not address the constitutionality of the Ohio statute. The justices will address the tangential issue of whether the parties have the right to sue.

But the case still involves high-profile players from Cincinnati and high-stakes issues at the center of American politics.

"We think it's an extremely important case," said Chris Finney, a cofounder of the anti-tax group COAST, which has also challenged the law. "We're very excited the Supreme Court has recognized that it's worthy of their attention."

During the 2010 congressional campaign, the Susan B. Anthony List was preparing to launch a billboard ad campaign charging that by voting for the federal health care reform law, Driehaus was supporting taxpayer-funded abortions.

Driehaus sought a ruling from the Ohio Elections Commission to block the ads. Driehaus said the claim was false, damaged his reputation, and hurt his re-election bid. Republican Steve Chabot of Westwood won that race and now represents Ohio's 1st Congressional District.

After preliminary action by the elections commission, SBA List sued in federal court on First Amendment grounds. The Cincinnati-based COAST joined the fray as well, suing the Ohio Elections Commission in 2010 over the law and arguing that it violated free speech.

The two cases were combined by the 6th Circuit, which ruled that the COAST and SBA List didn't have standing to sue because they hadn't been criminally prosecuted.

The elections commission never reached a final determination on whether SBA List's speech was unlawful. And the billboards never went up because the company that owned the space balked after Driehaus's lawyer threatened legal action under the Ohio law.

Last summer, the two groups appealed the 6th Circuit ruling to U.S. Supreme Court. They argue that to be able to challenge a law that suppresses free speech, they should not have to be prosecuted -- a credible threat of prosecution should be enough.

"The Sixth Circuit's approach is to prevent even meritorious challenges to laws that suppress speech, resulting in self-censorship, chill, and degradation of political discourse -- the very evils that the First Amendment is designed to combat," the groups argue in their brief to the justices.

Ohio Attorney General Michael DeWine, in a brief defending the Ohio Elections Commission, urged the court not to take the case. The AG's office said SBA List and COAST only alleged "a generalized and subjective chill of their speech" and never showed that they faced any threat of actual criminal prosecution

"SBA List never specified how its speech was chilled, and, to the contrary, kept speaking despite the Commission's preliminary proceedings," the AG's brief argues.

On Friday, the Supreme Court agreed to hear the matter. The court's order made no comment on the case. The justices will schedule oral arguments on the matter later this year.

"We are thrilled at the opportunity to have our arguments heard at the Supreme Court and hope that not only will SBA List's First Amendment rights be affirmed, but those of all Americans," said Marjorie Dannenfelser, president of SBA List. "The Ohio Election Commission statute demonstrates complete disregard for the constitutional right of citizens to criticize their elected officials."

Driehaus could not be reached for comment on Friday. A voice mail left with the Ohio Elections Commission was not returned.

The justices will wade not into the legal thicket of whether the Ohio law inhibits free speech or is unconstitutional. Instead, they will hear arguments about whether COAST and SBA List have been harmed by the law and therefore have the right to sue.