Bopp Explains SBA List’s Case Against the Ohio ‘False Statement’ Law
James Bopp, Jr., the conservative First Amendment lawyer who argued Citizens United and is also representing the National Organization for Marriage in a number of campaign finance challenges across the country, turns out also to be arguing the lawsuit that the Susan B. Anthony List has filed against Ohio for its law punishing false claims in election advertisements. I asked Bopp whether his case depends on the truthfulness of SBA’s claim that the new health care reform law funds abortion, and he replied as follows:
The constitutional arguments we’re making do not depend on whether they’re truthful or not, but we are arguing that they are truthful. [...]
Our principle argument against the statue is that the government is empowering itself to decide the truth or falsity of information that’s related to elections. The way they’ve formulated the law is vague and not just related to express advocacy but also issue advocacy, and that’s unconstitutional.
When it comes to truth or falsehood we don’t believe it’s the role of the government to decide that such communications are true or false. That’s different from saying a false statement is protected under the First Amendment, of course, because truthful communications would be subject to the process just as false ones would be — they would be dragged though this whole process as well.
In other words, Bopp says the Susan B. Anthony List’s ads are accurate but the constitutional case he’s arguing doesn’t depend on that fact. SBA List is supposed to produce documents demanded in discovery to the Ohio Elections Commission on Friday, but it’s arguing that the process is onerous and unjust and is asking the U.S. District Court in Ohio for an injunction against the law. It was speculated that the court might decide the case today but it is under no obligation to do so.