In a highly unusual move, Ohio Attorney General Mike DeWine told the U.S. Supreme Court Monday that the state’s election law banning candidates from making false statements with malice violates the Constitution’s guarantee of freedom of speech.
In legal papers filed with the justices, DeWine said the Ohio law has a “chilling’’ impact on the speech not only of candidates, but independent organizations wishing to advertise against a candidate. The attorney general contended that the law “polices not just ‘false’ speech, but speech that indisputably is protected under the First Amendment.’’
The justices are expected later this spring to hear two challenges — both from Cincinnati — to the Ohio law. They have been consolidated into one case.
The first involved a political action committee that tweeted support for a ballot issue that would have prevented Cincinnati from constructing a streetcar system. Opponents of the ballot issue complained that the political-action committee had violated state election law by making false statements.
The second challenge was filed by Susan B. Anthony List, a non-profit organization that wanted to place a billboard advertisement in 2010 criticizing former Rep. Steve Driehaus’ vote for the 2010 health-care law.
When Driehaus’ attorney threatened to sue, the billboard owner declined to put up the advertisement. Driehaus, a Democrat from Cincinnati, filed a complaint with the Ohio Elections Commission, claiming the planned advertisement violated state election law that prohibits making false statements about a candidate.
Normally, the state attorney general would defend a law approved by the legislature in his or her state.
In the brief, DeWine contended that speakers can be intimidated by a complaint filed with the elections commission, writing “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 time and resources are best used elsewhere.’’
“In other words, the state has constructed a process that allows its enforcement mechanisms to be used to extract a cost from those seeking to speak out on elections, right at the most crucial time for that particular type of speech,’’ according to the brief. “And if the allegations turn out to be unfounded, there is no possibility of timely remedy.’’