[EL] Supreme Court to Mull Right to Lie in Political Ads

Mon Jan 13 08:20:04 PST 2014

The Ohio false statements law is much more pernicious than many can grasp, especially anyone who reads columns with headlines such as that in Politico. Indeed, what's fascinating is that there is no question that the SBA List ads that prompted this suit are true - yet SBA List was still forced to defend itself before the Ohio Election Commission and had to consider the possibility of criminal penalties before speaking.

So bad is this law that two years ago, in another case (COAST v. Ohio Elections Commission), I represented Ohio Attorney General Mike DeWine in filing a "Buckley amicus," a brief for the AG, in his personal capacity as an elected representative of Ohio's citizenry, noting the serious constitutional deficiencies in the law. [The brief should be available, but this link seems to work somewhat randomly http://docs.justia.com/cases/federal/appellate-courts/ca6/12-4158/12-4158-2013-09-11.pdf. You can read short excerpts at http://www.powerlineblog.com/archives/2012/02/a-salute-to-mike-dewine.php and  http://www.campaignfreedom.org/2012/02/20/ohio-attorney-general-questions-constitutionality-of-state-false-statements-law/.

For example, many articles on the law have noted that former-Rep. Driehaus dropped his complaint after losing the election, suggesting both that that is why he dropped the complaint and that it moots the case. Well, I don't know why Driehaus dropped the complaint (and, we might note, he did not drop a concurrent lawsuit for defamation), but a majority of false statement complaints at the OEC are dropped after the election. Why? Because their purpose is served before the election.

Every moderately competent Ohio lawyer who practices in the field knows how the game works. You file your complaint 1 week before election. A 3 member "probable cause" panel of the OEC will then determine if "probable cause" exists, typically on Thursday or Friday morning before the election. The members of this panel - who need no legal training at all, are appointed by political affiliation and will typically have a majority membership from one party, and are prohibited by Ohio law from considering constitutional objections - then make a probable cause determination, at a very low (though indeterminate) level of proof. This typically results in a finding of "probable cause" that the accused has "lied" in a statement. The complaining candidate then features this finding in advertisements run over the week-end of the campaign. "A panel of the Ohio Elections Commission found probable cause that my dirty rotten scumbag opponent's campaign ads are lies." The credulous/ignorant/what-the-hell-it-has-the-whiff-of-a-scandal-let's-go-with-it (take your pick) press trumpets the findings through newspapers and radio news in the district in the campaign's final 2-3 days. When the case is dismissed (voluntarily or not - in the DeWine brief in COAST, we noted that the overwhelming majority of complaints that are prosecuted are dismissed, and the majority of those not dismissed tend to eventually be overruled on appeal) it is long after the election, and after the damage has been done.

The COAST brief outlines numerous other practical deficiencies in the operation of the law. For now I'll just say that the law makes a sham out of the idea of due process. And these non-lawyer OEC members typically have not read any briefs before the panel convenes to make its determination - the complaint is typically filed about 48 hours before the hearing, a response, if any, the day before, and rarely read. The OEC has just one single lawyer on its entire staff - Phil Richter, a former student of mine I'm proud to say, a guy with a good legal understanding and a lot of common sense - but he also serves as Staff Director and as a matter of reality can rarely provide more than the most cursory analysis of the complaint. The panel normally votes immediately after presentation of the case.

But it is worse, and the Susan B. Anthony List case shows how. Driehaus complained that the SBA List ads, accusing him of voting for public funding of abortions by voting for Obamacare, were false. This all hinges, it has been suggested, on whether the voter should have believed the U.S. Conference of Catholic Bishops, which argued at the time that it did, or Driehaus and other congressmen who argued that a March 2010 Executive Order would prevent taxpayer funding for abortions (although the effect of that order was always in doubt, and it could be repealed at any time by the President. Aside - does anyone now deny that the ACA covers funding for elective abortions, and that SBA List's accusations were therefore correct?). Of course, that would be bad enough as a reason to silence the speaker for "false" speech. It would show that the SBA List ads accusing Driehaus of voting for public funding of abortion were not demonstrably "false." But in fact, the SBA List ads were not only arguably true, they were literally, absolutely true. At this link you can see a photo of the SBA List proposed billboards that prompted Driehaus's complaint. http://cincinnati.com/blogs/politics/2010/09/28/driehaus-attack-billboards-going-up/ They state, in their entirety, "Shame on Steve Driehaus! Driehuas voted for taxpayer-funded abortion."

Now here is the relevant actual text from the President's Executive Order:

"The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered).... The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered). ... I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act's segregation requirements." http://voices.washingtonpost.com/44/2010/03/white-house-announces-executiv.html

In other words, the ACA specifically allows the use of tax credits and cost-sharing reduction payments to pay for abortion in the cases of rape or incest, or when the life of the woman would be endangered. Or, in plain speak, it provides for taxpayer-funded abortions.

Now, I've never voiced an opinion on this list about abortion, and I'm not about to do so now. It doesn't matter what any of us think about that issue. It might strike you as wrong not to fund abortion services, and as cruel not to fund them in cases of rape, incest, or when the life of the woman is endangered. But the plain and simple fact is that the SBA List statement at issue in this case is absolutely, literally true.

The only way to characterize the SBA List speech as false is to ignore its literal meaning and impose some context\interpretation to the effect of “you mean taxpayer funding of abortion in cases other than the usual exceptions… .”

Yet the OEC found was probable cause that the SBA List statement was "false speech."

I would hope that this case goes 9-0. And I would hope that the press will do better than to run with the misleading but all too easy narrative "Court says Constitution protects lies in political ads." I'm reasonably optimistic on the former, but not at all optimistic on the latter.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Saturday, January 11, 2014 12:27 PM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 1/11/14

<http://electionlawblog.org/>
“Supreme Court to mull right to lie in political ads”<http://electionlawblog.org/?p=57869>
Posted on January 10, 2014 9:07 pm<http://electionlawblog.org/?p=57869> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports<http://www.politico.com/blogs/under-the-radar/2014/01/supreme-court-to-mull-right-to-lie-in-political-ads-180995.html>.

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