By Sarah Wiley
A federal judge in Cincinnati struck down an Ohio law which criminalizes intentionally lying in campaign ads or statements, on the books for decades in early September on First Amendment grounds. The state filed an appeal in October.
The law in question makes it criminal to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate,” and gives the Ohio Election Commission enforcement power.
The case arose when former U.S. Representative Steve Driehaus filed a criminal complaint against anti-abortion advocacy group the Susan B. Anthony List for claiming that his support for President Obama’s healthcare plan meant he was in favor of tax-payer funded abortion. Driehaus is in fact pro-life. The Susan B. Anthony List then challenged the law’s constitutionality in Susan B. Anthony List v. Driehaus.
The case has created strange political bedfellows, such as the anti-abortion Susan B. Anthony List and the ACLU, which joined in the suit. And interestingly, even as his office defended the law, Ohio Attorney General Mike DeWine filed a brief in this case claiming it was adverse to free speech. DeWine explained that this law is used by candidates to “game the system by filing [baseless] complaint[s]” Though the attorney general recused himself, his office and the state continued to defend the law.
Though Driehaus dropped his case after losing his 2010 re-election bid, the Susan B. Anthony List wished to continue its challenge. Though both the district and appellate courts ruled that they lacked standing, they continued to the Supreme Court. The Supreme Court was unanimous in overturning the lower court opinions and the case was remanded to the District Court.
After hearing the case on its merits, the District Court found it agreed with the plaintiffs that the political false-statement law violates the First Amendment.
This ruling was in no way an endorsement of lying in campaigns. In issuing his decision, Judge Timothy S. Black said “Lies have no place in the political arena and serve no purpose other than to undermine the integrity of the democratic process. The problem is that, at times, there is no clear way to determine whether a political statement is a lie or the truth. What is certain, however, is that we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth—for fear that the Government might persecute those who criticize it.”
Though the statement at issue in this case was a falsehood, Black continued, in future cases “it is entirely possible that a candidate could make a truthful statement, yet the OEC would determine a few days before an election that the statement is false, penalizing the candidate for speaking the truth and chilling further truthful speech.”
The judge also brought in popular culture, quoting Netflix original series House of Cards in his opinion: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”