Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Judge strikes down Ohio law on election lies

A federal judge has struck down an Ohio state law that allows the government to regulate political falsehoods.

In a Thursday decision (posted here), U.S. District Court Judge Timothy Black sided with the pro-life group Susan B. Anthony List against the Ohio Elections Commission in a lawsuit over the commission's right to regulate and censor political speech that it deems false.

“We do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the government might persecute those who criticize it. Instead, in a democracy, the voters should decide,” Black wrote in a decision that orders the state to stop enforcing its falsehood law.

Black, a Cincinnati-based appointee of President Barack Obama, continued: “Here in Ohio, there is no reason to believe that the OEC is positioned to determine what is true and what is false when it comes to political statements. In fact, it is entirely possible that a candidate could make a truthful statement, yet the OEC would determine a few days before an election that the statement is false, penalizing the candidate for speaking the truth and chilling further truthful speech.”

The judge's decision goes on to quote fictional character Frank Underwood from the Netflix show “House of Cards," saying: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”

The case arises out of a dispute during the 2010 election where SBA List wanted to run political ads against then-Rep. Steven Driehaus (D-Ohio) accusing him of voting in favor of taxpayer-funded abortions by supporting Obama’s health care law, now commonly called Obamacare.

Driehaus filed a complaint over the ad campaign with the Ohio Elections Commission, arguing that SBA List’s billboard ad was in violation of the Ohio false political statement law.

SBA List strongly denied that its ads were false but filed a constitutional challenge on First Amendment grounds, arguing that the government had no right to determine the truth or falsehood of political ads and that Ohio’s law had a chilling effect on speech.

Ohio law makes it a crime to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate" and gives the state election commission the right to enforce the law.

“After four years and a trip to the U.S. Supreme Court, today we finally have a victory for free speech,” SBA List President Marjorie Dannenfelser said in a statement on Thursday.

“Today’s decision allows us to freely communicate the truth with voters — that elected representatives who voted for the Affordable Care Act voted for taxpayer-funded abortion. It is beyond dispute that, because Congress and the White House failed to include the Stupak amendment, Obamacare contains multiple abortion-funding provisions. This reality will continue to be a key part of our message to voters in the 2014 midterm elections and beyond,” Dannenfelser said.

The case was originally tossed out by Black in 2011 on the grounds that SBA List did not have standing to bring the lawsuit.

The U.S. Supreme Court disagreed, finding earlier this year that SBA List had standing for a suit and ordering the district court to rehear the case.

The state of Ohio can still appeal the decision.