Big changes in Ohio’s laws on false campaign statements

Just in time for election season, several recent developments in Ohio law have changed the playing field for campaign advertisements.

On September 11, 2014, Judge Timothy Black of the U.S. District Court for the Southern District of Ohio held that Ohio’s political false statements laws are unconstitutional, and he enjoined the Ohio Elections Commission from enforcing them. Susan B. Anthony List, et al., v. Ohio Elections Comm’n, Case No. 1:10-CV-720, 2014 U.S. Dist. LEXIS 127382.

Ohio’s false statement laws are contained in Ohio Revised Code sections 3517.21(B)(9) and (10). Section (9) prohibits making "a false statement concerning the voting record of a candidate or public official." Section (10) provides that a person may not "post, 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."

The challenge to these false statement laws was brought by plaintiffs Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes. The plaintiffs challenged the false-statement laws during the 2014 election cycle, arguing that the laws are a burden on their First Amendment right to free speech.

Defendants, including the Ohio Elections Commission (OEC), argued that Ohio has a compelling interest in protecting the integrity of its elections and that laws prohibiting false statements in campaigns protect a public interest in this integrity.

Judge Black applied strict scrutiny of the Ohio law and determined that the law was not "narrowly tailored to achieve a compelling government interest." Based on previous decisions from the U.S. Supreme Court, Judge Black concluded that the interest in preventing false speech in campaigns is not a compelling or substantial state interest and constituted an impermissible restriction on free speech.

In addition, because there is no mechanism for identifying and immediately dismissing frivolous complaints brought under Ohio’s false statements laws, Judge Black concluded that the burden created was also imposed on truthful speakers, thus was not "narrowly tailored." Because the law can be used against truthful speakers, it has the effect of "chilling" speech and preventing important dialogue in the campaign and election process.

Judge Black criticized governmental regulations of the truth or falsity of political speech and suggested that the voters are the proper panel for distinguishing between true and false campaign statements. The OEC publicly announced that it plans to appeal Judge Black’s decision; however, as of this writing, no appeal has been filed.

Susan B. Anthony List applies to R.C. 3517.21 and political statements by non-judicial candidates. However, Ohio law contains two other provisions that regulate false statements in other contexts, one of which was addressed in a recent Ohio Supreme Court ruling.

Judicial candidates are required to abide by the Rules of Judicial Conduct. On September 24, 2014, the Court issued a ruling finding that a portion of these rules are unconstitutional and thus unenforceable. Rule 4.3(A) prohibits a judicial candidate from “knowingly or with reckless disregard” disseminating false information about the candidate or an opponent or true information that would be “deceiving or misleading to a reasonable person.” The Court found the rule to be unconstitutional because of the regulation of true but misleading speech. The Court declined to extend its ruling to include campaign speech that is knowingly false.

While Susan B. Anthony List may still be appealed, these recent cases demonstrate a move by courts to embrace more political speech — even speech that may be misleading — and the notion that political debate is best fostered by open dialogue, rather than false statement legislation.

---

This article was reprinted from the Fall 2014 Compliance Connections Newsletter. Download the complete Fall 2014 issue here.