This article appeared at National Review Online on March 21, 2011.
Ohio’s Speech Police
Should the government fact-check political ads?
By Katrina Trinko
During most elections, candidates accuse their opponents of making false claims. In Ohio, they can go a step further: They can ask a government commission to decide who is telling the truth.
That’s what happened last fall when then–U.S. representative Steve Driehaus filed a complaint with the Ohio Elections Commission against the Susan B. Anthony List, a pro-life group. Driehaus, a self-described pro-life Democrat, argued that the message the SBA List planned to put on billboards in his district — “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion” — was false.
Driehaus disagreed that Obamacare funded abortion. (Never mind that Florida Democratic representative Debbie Wasserman Schultz, talking about the last minute “compromise” on abortion, said the same day that the legislation passed the House that “an executive order can’t change the law.”) And he thought that the State of Ohio would take his side.
In addition to filing the complaint, Driehaus contacted the Lamar Advertising Company, which owned the billboards, and threatened to include them in the complaint if they did not terminate their agreement with SBA List and refuse to run the ads.
Lamar folded, and the billboards didn’t go up. A preliminary hearing found that there was probable cause that the SBA List ads were false. The full commission hearing, originally scheduled shortly before the election, was never held. In mid-November, a then-defeated Driehaus withdrew the complaint and sued the SBA List for defamation in federal courts. The SBA List is fighting the defamation suit and filed a brief late last month arguing that the Ohio false-statement law is unconstitutional.
“This case is probably the best case to test the constitutionality of law,” says SBA List president Marjorie Dannelsfer. Here’s a situation where the entire Republican party, the entire pro-life movement, the official position of the Catholic Church is one side, and the Democratic party and Congressman Driehaus are on the other. And a tribunal set up to decide the veracity of either side’s argument is simply counter to our founding and our First Amendment rights.”
“We don’t want to be victimized again,” says James Bopp, a lawyer working on behalf of the SBA List on the case. “This is just a weapon that can be deployed during any election to try to stifle speech.”
Ohio’s law, which prohibits anyone from making “a false statement concerning the voting record of a candidate or public official,” applies to all non-presidential elections, even if they are for federal office. Sixty to 80 cases are brought to the Ohio Election Commission’s attention every year, estimates Philip Richter, its executive director. About ten to 15 of those ultimately receive a hearing from the full commission. (More pass the preliminary-hearing phase, but sometimes the parties reach agreement and the complaint is dropped before the full hearing.) If the OEC decides that a statement is false, there are three possible outcomes: The person making the statement can be prosecuted by Ohio (very rarely applied), the person can receive a public reprimand letter, or the commission can announce its finding of falsity.
Distaste for the law crosses ideological borders: The Ohio branch of the ACLU, which agrees with Driehaus that Obamacare does not fund abortion, filed an amicus curiae brief last fall stating its support for the SBA List’s fight against the law. “The people have an absolute right to criticize their public officials, the government should not be the arbiter of true or false speech, and, in any event, the best answer for bad speech is more speech,” wrote the ACLU.
For those in Ohio who have grappled with the law for years, there is concern about how often the law already stifles speech. “The mere existence of the law allows people to make an allegation and then chill speech right before an election, which is exactly what Driehaus was able to do,” comments Maurice Thompson, executive director of the Ohio-based 1851 Center for Constitutional Law.
Chris Finney, an Ohio lawyer who has represented multiple clients in cases involving the Commission, is frank about his frustrations with the law.
“Ninety-eight percent of the stuff that goes on at the Ohio Elections Commission has nothing to do with the truth or falsity of the statement in question,” he says. “It has to do with trying to embarrass your opponent as Election Day approaches. You get a headline that says this person is a liar. You may get a ruling in time that you can publish printed materials that say the OEC found that my opponent lied. And that’s what it’s all about.”
In one case, Finney’s client was accused of lying because he had said that government officials had paid $60,000 to buy a building they tore down. Not so, argued the officials, who pointed out they had paid $30,000. Finney’s client pointed out that while they had paid $30,000 for the building, there had been other associated fees, such as $8,000 for lawyers and $4,000 in appraisal fees, that ultimately pushed the full cost to $60,000.
“So when you add it all together, my client was right, at least in one interpretation,” Finney comments. “Their client was right in another interpretation. Who’s telling the truth and who’s lying? Do we want government deciding that?”
Finney also dislikes the fact that commissioners don’t need to have a legal background. The panel is bipartisan, and must be composed of three Republicans, three Democrats, and one independent. Currently, four of the six members (one member recently resigned, and a replacement has not yet been appointed) have legal training.
Overturning Ohio’s false-statement law could prove tricky. A version of it has been around for over half a century, and has already survived a court challenge, with the Sixth Circuit ruling in 1991 that the portions of the law connected with speech regulation were constitutional. The SBA List has a different legal argument than was used in the earlier case, but it’s anyone’s guess how persuasive judges will find it. “I have no idea,” admits Bopp, when asked how far the case could go.
But he is confident that it will have far-ranging echoes. “It is fundamentally unconstitutional to empower the government to decide what speech is false and what speech is true,” says Bopp, “and then punish the false speech when we are talking about candidates for political office. This is at the core of First Amendment, and this is for the voters to decide, not the government.”
—Katrina Trinko is an NRO staff reporter.