The State of Ohio is playing for time in its defense of its “false campaign statements” statute. It wants the case now before the Supreme Court decided on ripeness, win or lose; it wants to hold off a decision on the constitutionality of its law.  Some, Rick Hasen among them, believe that this might work.  But then again, it might not, and the law could well be put out to pasture without further ado.  The petitioner has argued in clear terms that the law is unconstitutional and that, on this point, the recent decision in United States v. Alvarez is dispositive.  Petition for Writ of Certiorari at 6-7, Susan B. Anthony List v. Driehaus, 134 S.Ct. 895 (2014) (No. 13-193).  And the Court could agree, motivated as well to spare the petitioner another expensive, time-consuming tour through the courts to win the victory that it is virtually guaranteed.

The State stresses that the Ohio Elections Commission has limited authority.  It can decide that a campaign statement is false, but on its own can do nothing about it except investigate, issue a finding and refer the case elsewhere for enforcement. The prosecutor to whom a referral is made is not obligated to pursue the charge. The Sixth Circuit has said in defense of this law that the State’s function is simply to tell the truth to the electorate—to fulfill what it calls a “truth-declaring” function.  Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 579 (6th Cir. 1991).

But it is this function that is destined to fail under Alvarez. Justice Kennedy there rejects the notion that the State can act as a “Ministry of Truth,” and the dissent stands, on this proposition, with the plurality.  United States v. Alvarez, 132 S.Ct. 2537, 2547 (2012); Id. at 2564 (Alito, J., dissenting) (“[I]t is perilous to permit the state to be the arbiter of truth.”).  Hasen agrees that the Court in Alvarez exhibited, to the say the least, “unanimous skepticism of laws targeting false speech of public concern and through which the state potentially could use its sanctioning power for political ends.” Richard Hasen, A Constitutional Right to Life in Campaigns and Elections?, 74 Mont. L. Rev. 53, 69 (2013).  And Ohio won’t get far by arguing that this law could do no direct harm because the Ohio Elections Commission possesses only the power to investigate: this Court has exhibited particular concern about costs of investigation in analyzing First Amendment damage done by regulation of the political process. See, e.g., Citizens United v. FEC, 558 U.S. 310, 335 (2010) (discussing the costs of defending against administrative agency enforcement).

So the argument today won’t be especially interesting on the ripeness issue, on which Ohio seems certain to lose, but it may reveal something of the Justices’ willingness to get right away to the merits.  It is not out of the question that, after Alvarez, they may be prepared end all constitutional doubt, especially because there really isn’t any.  To force more litigation on the petitioner in these circumstances, when the eventual outcome is virtually certain, may strike this Court as unnecessary and undesirable.

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