The SBA List, which supports pro-life candidates and opposes those who support legalized abortion, filed suit in federal court after the Ohio Elections Commission in 2010 ruled against the group's ad campaign against Rep. Steve Driehaus, a first-term Democrat representing the state's First District.
The SBA had announced a radio and billboard campaign against members of Congress the group charged had voted for taxpayer funding of abortion by voting for the Patient Protection and Affordable Care Act of 2010 (ObamaCare). The billboard ad planned for Driehaus' district would have declared: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Driehaus filed a complaint with the Elections Commission, claiming the SBA List was spreading lies about him. The advertising company that controlled the billboard space refused to run the ad after receiving a letter from Driehaus' attorney threatening legal action.
The SBA List charged its First Amendment rights had been violated, but the U.S. Court of Appeals for the 6th Circuit ruled against the group's appeal. Driehaus had withdrawn the complaint after losing the election and the SBA List had continued to advertise its message after the complaint had been filed. The court also ruled that the group lacked standing to sue because it could not demonstrate "an imminent threat of future prosecution." The Supreme Court disagreed in a unanimous opinion written by Associate Justice Clarence Thomas.
"The threat of future enforcement of the false statement statute is substantial," Thomas wrote, noting "the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from 'imaginary or speculative.'" The case, SBA List v. Driehaus, is remanded for further proceedings.
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