Court strikes Ohio’s false campaign statement laws

On Thursday, 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 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 the false statement laws was brought by plaintiffs Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes. 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, 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.

Although the decision does not directly involve Ohio’s laws related to false statements in ballot issue campaigns, the analysis contained in the case applies with equal force to R.C. 3517.22 and its similar prohibitions against false statements in a ballot issue campaign. As of this writing, it is unknown whether the state of Ohio will appeal the ruling or whether the General Assembly will try to amend the laws to respond to Judge Black’s decision. Regardless, it is clear that the decision represents a major shift in the enforcement of Ohio’s election laws and the strategies that campaigns will need to employ to combat false election communications.