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Justices to Consider ‘Speech-Suppressive’ Law

(CN) - The Supreme Court agreed Friday to determine if groups challenging an Ohio law that criminalizes false political speech must prove they face a credible threat of prosecution.

Ohio law makes it a crime to "post, publish, circulate, distribute or otherwise disseminate a false statement concerning a candidate" or ballot initiative knowingly or with "reckless disregard."

The Susan B. Anthony List, an anti-abortion group, ran afoul of the provisions with a planned billboard criticizing Rep. Steven Driehaus for supporting the Affordable Care Act. The sign would have read: "Shame on Steven Driehaus! Driehaus voted FOR taxpayer-funded abortion."

But the billboard never went up, according to the group, because Driehaus' attorney threatened the company that owned the advertising space with legal action.

Susan B. Anthony List responded by challenging the Ohio law in federal court.

While that lawsuit was pending, another conservative group, called the Coalition Opposed to Additional Spending and Taxes (COAST), filed a lawsuit claiming it wanted to make similar statements about candidates but was chilled from doing so by Ohio laws.

A federal judge consolidated the complaints and dismissed them, saying any injury was "far too attenuated," because prosecution was only "speculative."

The 6th Circuit affirmed: "A court cannot decide SBA List's claims on this threadbare record without engaging in precisely the kind of conjecture that the ripeness doctrine bars," the court wrote.

It said COAST's claims "are even more speculative than SBA List's."

However, the Susan B. Anthony List, in its petition to the Supreme Court, said the 6th Circuit's finding that prosecution under speech-suppressive laws must be "certain" and "successful" conflicts with the rulings of seven other circuits. Those courts held that a credible threat of prosecution is presumed unless prosecutors firmly refuse to enforce the law.

The high court agreed to weigh in on two issues: 1) whether parties challenging a speech-suppressive law must prove that authorities would "certainly and successfully" prosecute them, and 2) whether the 6th Circuit erred when it ruled that Ohio's law banning false political speech is not subject to chilled-speech review so long as the speaker maintains that the speech is true, despite what others say.

This case, Susan B. Anthony List v. Driehaus, will likely be argued in April.

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