Susan Anthony’s Victory

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The victory today in the Supreme Court of the Susan B. Anthony List is no doubt cause for encouragement — for friends of both the pro-life movement and the First Amendment (or do we repeat ourselves?). The case involved an appeal by the Susan B. Anthony List, a pro-life group named for the suffragette and opponent of abortion. It had been targeted in Ohio under a law that makes it a crime to make a false statement against a candidate up for election. There is no adverb in the English — or any other — language adequate to describing just how outrageous is the law.

It would, though, be premature to celebrate too uproariously the Court’s decision this morning. For what this case involved was not whether the Susan B. Anthony List had violated the law. Or whether the law is unconstitutional. This was about merely whether the Susan B. Anthony List can get into court to argue that the law is unconstitutional. That argument now appears likely to take place in federal district court in Ohio. This is what the regulation of political speech has done to America. It takes years just to gain the right to go to court to argue the constitutionality of a law regulating what a person can say about his own congressman.

The congressman — now an ex-congressman — is a Democrat called Steven Driehaus, who was swept into the House during the tide that landed President Obama in the White House. Susan B. Anthony got on his case owing to his vote for Obamacare. It planned to put up a billboard saying “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The logic for making this connection is illuminated in, among other places, a position paper published by the Heritage Foundation. It references the Hyde Amendment, which prohibits federal funding of abortion. Congressman Hyde would be turning over in his grave at the thought of Obamacare.

In passing the law, Heritage notes, Congress “failed to apply Hyde amendment or similar language to the totality of the health care law” so that “Obamacare potentially allows large taxpayer subsidies to flow to health plans that cover elective abortion.” Mr. Driehaus filed a complaint against Susan B. Anthony List in respect of the planned billboard against him. It was a criminal complaint. The billboard company then declined to put up the billboard. The congressman lost the election anyhow and dropped the complaint. But Susan B. Anthony filed a lawsuit to vouchsafe its constitutional rights. It has just won a chance to get heard.

The encouraging thing about today’s decision is that it was unanimous — meaning that every one of the nine justices voted for it, with Justice Thomas writing a majority opinion for such Justices as Kagan, Ginzberg, Breyer, and Sotomayor. “Denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other,” Justice Thomas wrote. If an American can’t get heard on the right to criticize a congressman, what is the Bill of Rights worth?


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