For the last 20 years, Ohio has had its own kind of “Ministry of Truth,” otherwise known as the Ohio Elections Commission (OEC). Anyone who claimed that someone – typically a political opponent – was lying to advance or defeat a politician could file a complaint such that a panel of bureaucrats would determine the “truth.”
What will go down as the abuse of the “political statement law” was in 2010 when Rep. Steven Driehaus complained that a pro-life advocacy group accused him of supporting “taxpayer-funded abortions” by voting for the Affordable Care Act. The OEC determined that there was probable cause that the statement was false. The ruling was widely publicized in the media less than a month before the election. Then discovery started on the formal prosecution, requiring disclosure of all of the targeted group’s communications with allied organizations, political parties, and members of Congress.
Imagine just the time and money required to respond to this kind of complaint in the last month before an election – not to mention the PR fallout – such that the damage is done regardless of the result of the legal process. Accordingly, Susan B. Anthony List brought a lawsuit challenging the Ohio law (a version of which existed in about a dozen states). But after the election, Driehaus withdrew his complaint, the prosecution was shuttered, and so the OEC claimed that no harm was ultimately done and so the lawsuit had to be dismissed as moot.
The Cato Institute filed an amicus brief before the Supreme Court mocking the absurdity of the law, joined by America’s leading political satirist P.J. O’Rourke (also an H.L. Mencken Research Fellow at Cato). Using humor to illustrate absurdity, we showed the silliness (and danger) of allowing potential criminal penalties for “false” statements like “Read my lips: no new taxes!” or “If you like your healthcare plan, you can keep it.” The brief generated a great response, so much so that it was reprinted in Politico and the Pennsylvania Journal of Constitutional Law, and The Green Bag gave it one of its “Exemplary Legal Writing” honors for 2014. Ultimately, the Supreme Court unanimously held that the statute could indeed be challenged.
On remand, the federal district court quickly enjoined the Ohio statute as violating the First Amendment. Then last week, the U.S. Court of Appeals for the Sixth Circuit affirmed that ruling, effectively killing the “False statement” law. The court described many good reasons for its decision, including the timing and resource-draining issues noted above. However, even if these problems were solved, the government still should not be in the business of evaluating core political speech prior to an election. The result was a victory for the freedom of speech.
While Donald Trump may wish to eviscerate the First Amendment, the state of Ohio (and effectively any state government) can no longer threaten their political candidates and advocates into silence.