State Cannot Punish for Political Lies During Campaign

Columbus African American News Journal

A federal court struck down Ohio's unconstitutional political false-statement law, barring the Ohio Elections Commission from deciding whether political statements are true or false.1 Ohio's law criminalized disseminating a false statement concerning a candidate during a campaign,2 and making a false statement concerning a candidate's voting record.3 But that has changed on the eve of Ohio's 60-day voting period.

In Susan B. Anthony List v. Ohio Elections Commission, a pro-life advocacy group and a government watch-dog group argued that the law violated their First Amendment rights to criticize certain members of Congress who voted for the Affordable Care Act (ACA), which they alleged funds for abortion. The targets of the criticism were two Congressional members, each pro-life Democrats, one of whom filed a false statement complaint with the Ohio Elections Commission (OEC) because the ACA does not appropriate federal funds for abortions.

The advocacy groups did not argue for "a right to lie." Instead, they claimed "a right not to have the truth of [their] political statements be judged by the government." The court agreed, finding "no reason to believe that the OEC is positioned to determine what is true and what is false." Because, in part, there is no clear way to determine whether a political statement is a lie or the truth- the voters should decide, the court ruled.4

Although the district court described the well-developed OEC procedures, which could include an expedited hearing, a public reprimand for a violation or a referral to a prosecutor as a first-degree misdemeanor, the burdens on protected political speech is too heavy.5

OEC complaints are most often filed just days before an election and then routinely dismissed shortly after the election so that the target has no opportunity for judicial review. "The speaker is forced to use time and resources responding to the complaint, typically at the exact moment that the campaign is peaking, and [his/her] time and resources are best used elsewhere."6

The court applied a strict scrutiny test and found not only that the law was unnecessary to achieve a compelling state interest, but also that the law was not narrowly tailored. Unless overruled by the Sixth Circuit Court of Appeals or the U.S. Supreme Court, political truth or lies must exclusively be determined by the voters.

Footnotes

  1. Susan B. Anthony List, et al. v. Ohio Elections Commission, et al., U.S.Dist., S.D.Ohio No. 1:10-cv-720, Black, J. (Sept. 11, 2014), Doc. #139.
  2. ORC 3517.21(B)(9)
  3. ORC 3517.21(B)(10)
  4. SBA List, p.2.
  5. ORC 3517.154, ORC 3517.156, ORC 3517.156, ORC 3517.155 and OAC 3517-1-14.
  6. SBA List, p. 7.