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

Thu Jan 23 05:16:07 PST 2014

Brad's brief for AG DeWine as amicus is here:

http://www.hamilton-co.org/cinlawlib/blog/DeWine_COAST_brief.pdf

I'm a bit surprised that Mike Carvin did not simply rely upon it heavily in
his cert. petition (it goes unmentioned).  It sure puts DeWine in a
sensitive spot in the newly granted case, since as a representative of the
state defendants, he's arguing there that the Commission proceeding does
*not* chill speech, given that the prospect of prosecution is remote and
speculative.  (This is why the Bob Bork "file briefs on both sides"
strategy from Buckley v. Valeo is so rarely repeated -- indeed, I don't
know of any other such cases, apart from Buckley and this one.)

Brad, perhaps you know the answer to this:  Under Ohio law, does the AG
have the authority to conclude that a law is unconstitutional and to order
all state prosecutors not to prosecute under it?  Can he order the
Commission not to initiate probable cause hearings (assuming there could be
no prosecutions)?

I assume DeWine did no such thing here, so that prosecution remains at
least a *possibility*, no matter how remote.  Is that correct?

On Mon, Jan 13, 2014 at 11:20 AM, Smith, Brad <BSmith at law.capital.edu>wrote:

>  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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <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>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D57869&title=%E2%80%9CSupreme%20Court%20to%20mull%20right%20to%20lie%20in%20political%20ads%E2%80%9D&description=>
>  Posted in campaigns <http://electionlawblog.org/?cat=59>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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