Last week, in Susan B. Anthony List v. Driehaus, the Sixth Circuit applied United States v. Alvarez to strike down Ohio’s political false-statements laws. The provisions in question prohibited knowingly or recklessly making false statements with the intent of affecting the outcome of an election. The statute specifically identified certain types of false statements as prohibited—for example, statements regarding a candidate’s criminal record or voting record—but also broadly prohibited any “false statement concerning a candidate . . . [and] designed to promote the election, nomination, or defeat of the candidate.”
In addition to describing three ways in which the laws were overinclusive substantively, the Sixth Circuit also found that they did not offer adequate procedural safeguards: no guarantee that complaints would reach final resolution before an election and no procedure to weed out frivolous complaints. It will be interesting to see whether Ohio’s General Assembly revises its laws in accordance with the Sixth Circuit’s interpretation of Alvarez. In any event, brace yourself for the inevitable onslaught of election-based claims that often arise at the Sixth Circuit in an election year!