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‘Facts’ and ‘Lies’ in an Ohio Free-Speech Case

Can poliicians "let it rip" responsibly?

Tom Blumer


April 27, 2014 - 12:01 am
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On Tuesday, the same day that the Supreme Court issued its decision firmly upholding Michigan’s 2006 civil rights initiative prohibiting racial preferences in university admissions and public-sector employment and contracting, the court also heard arguments in a critical political speech case originating in Ohio.

Ultimately at issue is the section of Ohio’s Revised Code involving “false statements in campaign materials.” The Cleveland Plain Dealer estimates that “at least 15 other states have similar laws.”

The case’s plaintiffs, the Susan B. Anthony List, a prolife organization, and COAST, a group of Greater Cincinnati limited-government activists, want the entire law thrown out. In his final rebuttal Tuesday, SBAL’s attorney stated: “We want to say that anything, fact or opinion, is unconstitutional to limit under the false statement law.”

To be clear, as COAST attorney Christopher Finney reminded me in a Friday morning conversation, the Supreme Court’s decision in the case will only directly relate to standing, i.e., whether SBAL and COAST have the right to bring legal action. That said, the justices’ necessarily narrow ruling may also yield clues as to their feelings on the underlying matter.

The free-speech tide is clearly running in the plaintiffs’ direction. In 2012, the court, in U.S. vs. Alvarez, ruled that a 2005 federal law which criminalized false statements about one’s military service and honors was unconstitutional. If there is no legal recourse against people who publicly and obviously lie about their military honors or other aspects of their military service, or even about whether they served at all, then what constitutional basis is there for laws which attempt to curb or sanction even blatantly false statements by political candidates and their supporters? Despite the plaintiffs’ prolife and conservative politcal positions, the American Civil Liberties Union is among the many groups which filed an amicus brief on their behalf. Finney also noted that certain court members sent clear signals in oral arguments during Alvarez that they have little regard for non-libelous false statement laws in general.

On Tuesday, SBAL argued, and a clear majority of justices seemed to agree, that a 2010 pre-election “probable cause” false statement finding by a panel of the Ohio Elections Commission, the state body formed to hear and adjudicate complaints under the law, sufficed to show that its free-speech rights had been abridged.

SBAL had sought to put up billboards claiming that incumbent First District Congressman Steve Driehaus’s vote for the Affordable Care Act earlier that year constituted support for taxpayer-funded abortions. Billboard companies refused SBAL’s business as a result of the finding. COAST joined the action because it had been ready to publicly push the same argument until the OEC panel’s finding. The state of Ohio, in defending its law, has argued that since the full OEC hadn’t formally ruled, no actual harm had occurred.

The full OEC never heard the matter, because Driehaus did not pursue his OEC complaint after losing his reelection bid. Instead, he opted to sue SBAL for defamation and — get this — “loss of livelihood.” This gambit progressed through the legal system much further than it should have before ultimately failing in early 2013. SBAL’s abortion-related assertion relating to Driehaus’s ACA vote has since been vindicated.

In the matter before them, it appears overwhelmingly likely that the Supremes will throw out the state of Ohio’s no-harm argument, and that SBAL and COAST will prevail once the matter returns to the lower courts.

Is all of this for the good? I hope so, but I have my doubts, to a large degree based on my observations of the deteriorating integrity of political parties, candidates, and campaigns — a problem which is far more prevalent on the left than on the right. Throwing out Ohio’s entire law would incorrectly and I believe dangerously concede a cherished point of the deconstructionist left, namely that there is no such thing as a univerally agreed-upon fact.

Section (B) of Ohio’s law prohibits ten categories of false statements. Nine of them are specific. In an ideal world, I would keep at least a few of them, while limiting the punishments involved to fines. The tenth, which prohibits “disseminat(ing) a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not,”  is a catch-all, and should indeed be thrown out. This treatment would provide SBAL and COAST the relief they seek while still deterring a few of the most egregious campaign tactics.

To illustrate, let’s look at the opening section of the law’s first specific prohibition. It states that a candidate shall not “use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office.”

In 2005, Bob McEwen, one of 11 Republican primary candidates in a special congressional election free-for-all brought about by then-Congressman Rob Portman’s decision to accept an appointment as President George W. Bush’s trade representative, began running TV and radio ads and distributing literature referring to him as “Congressman McEwen.” Bob hadn’t been in Congress for over a dozen years; voters fired him in November 1992, primarily because of his involvement in the House banking scandal.

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Top Rated Comments   
There IS a rule book, Tom.

People who lean toward the right tend to follow rules, in general like and admire those who follow rules, enjoy an orderly society, and don't like cheating or "gaming the system".

People who lean toward the left believe in using the rule book to beat everyone else who isn't a leftist.

Cheating, lying, distorting, covering up, burying facts and evidence, is a day in the life of radical leftism and their Trinity of Truth Torturers...Hollywood, academia and agenda media.

There is a lawyer joke that you can't give a lawyer Viagra, it only makes them taller.

You can't give a leftist more rules, it only makes the rule book a bigger weapon against those inclined to follow it, in the hands of those who are surely going to beat their "enemies" with it.

For people who want to live a life with honor, to live with people who have none and don't care that they don't...the rule book will ALWAYS be the battlefield.

"By any means necessary" vs fair, legitimate, honorable and within the lines and never after the whistle.

It has been said, Tom...that law enforcent is unable to stop a suicide bomber who is willing to sacrifice himself to blow up something or somebody. Eventually one of them will get through. Not if...but when.

Similarly, you cannot stop determined leftists from blowing up a non-leftist society. It is THIS that makes leftists and jihadists perfect bedfellows. They are both willing to do anything to blow apart Judeo-Christian, free market, orderly societies.

And impose totalitarianism in its stead.

It is the freedom and liberty that sends them into a fury. It is the individual living with the combination of free will and a sense of honor...responding first and foremost to the instructions of a Biblical Higher Authority...that enrages the anti-Bible authoritarians.

We don't need a bigger rule book. We need to have free will and honor as a society in order to follow the ten rules that are most important. And to not follow those who want to punish us for lives in obedience to them.
34 weeks ago
34 weeks ago Link To Comment
^This x 1000.

"Congress shall make no law..." . No law. None. Zero. I think that is pretty clear.
34 weeks ago
34 weeks ago Link To Comment
''Throwing out Ohio’s entire law would incorrectly and I believe dangerously concede a cherished point of the deconstructionist left, namely that there is no such thing as a univerally agreed-upon fact.''

No. It would simply protect free speech from the left, who are all too happy to decide which facts are permissible and which are not.

The answer to bad speech, to distortions and inaccuracies is not government regulators telling people what they are allowed to say, but to have more free speech. To openly and loudly point out any dishonest or misleading statements.

More free speech is the answer, not not government control.
34 weeks ago
34 weeks ago Link To Comment
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All Comments   (19)
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You may not like false political speech by leftist dems, but giving power to any gov body to determine what is false is a cure far worse than the disease. Knowing the dems, any such body would eventually become dominated by leftists, and would restrict legidimate speech. If your opponent is telling lies, make your own speech pointing out the lies.
33 weeks ago
33 weeks ago Link To Comment
I prefer this Amicus Brief. It demonstrates the pointlessness of the law.
34 weeks ago
34 weeks ago Link To Comment
This gets to the root of the meaning & intent of the Free Speech clause in the First Amendment. My opinion is that it was intended primarily to prevent suppression of newspapers and political speeches, in the days when printed paper and vocal speech were the only forms of communication available (smoke signals and drum-beats notwithstanding). It is generally accepted today that shouting "fire" when there is no fire is speech that can be suppressed, but that concept has not been carried over when it comes to suppressing lies even when they are clearly harmful - definitions of "harmful" varying.

What shall we do about lying, when lying is deemed permissible by the courts? Solomon, wherefore art thou?
34 weeks ago
34 weeks ago Link To Comment
As long as Pols can jump up on a stump and lie like a dog, the people should be granted the same accommodation.
34 weeks ago
34 weeks ago Link To Comment
Only by renouncing the violent and oppressive
teachings of their warrior prophet can Islam be
Transformed into a 'religion of peace.' But any
Muslim who would suggest that would certainly
Put self and family under Sentence of certain death.
34 weeks ago
34 weeks ago Link To Comment
Here's is why Blumer's plan wouldn't work... leftists. It is as simple as that. They cannot be trusted with power so the only defense is not to give the government any power lest leftists gain that power. And make no mistake, big government types are the ONLY ones who will serve in positions to determine who gets to say what because it goes without saying that decent people will have no part of it.

And as if we needed an example we have the current case where it was obvious to everyone that the president and the rest who voted for the ACA were lying about abortion coverage. It didn't matter. The government moved to prevent citizens from warning each other of that very fact.
34 weeks ago
34 weeks ago Link To Comment
Hey Blumer, that road you think you want to take, this is where it leads;
34 weeks ago
34 weeks ago Link To Comment
I am sorry, but this law needs to be tossed in its entirety. You may think keeping some of these categories of infractions a good thing, but you are assuming the people interpreting those categories will be even-handed, and that assumption is just silly.
34 weeks ago
34 weeks ago Link To Comment
Or even pay attention to them. PLENTY of laws are ignored or not enforced.
34 weeks ago
34 weeks ago Link To Comment
if we had an honest media, this wouldn't even be an issue.

But instead we get If you like your plan you can keep it PERIOD, with the media fauning over this lie, and deception, and then finding out after that B.O. never meant this.
34 weeks ago
34 weeks ago Link To Comment
"Throwing out Ohio’s entire law would incorrectly and I believe dangerously concede a cherished point of the deconstructionist left, namely that there is no such thing as a univerally agreed-upon fact."

Of course! Progressives will argue till the cows come home that the sky is orange if thats the 'flavor of the day' narrative. Nailing a progressive down to 'facts' only happens when its their facts we agree to use - like the popular one where Sarah Palin is heard to have said "I can see Russia from my front door" - challenge one of these loons to produce that actual sound/video clip and they'll refer you to a SNL skit with Tina Fey doin the sayin. Thats their facts!

The premise of the Ohio law is a good one - but in our polarized politics of today its a busy court that will be wading through all the verbal/published crap - elections will have come and gone before the courts will have decided on whether this or that campaign fodder is based in fact unless these cases are fast-tracked - then you have accusations of biased judges etc etc. Can O Worms IMO.

And really! Other than political junkies like those who hang out here who is going to care? ? Mr. & Mrs. LIV couldn't care less.

34 weeks ago
34 weeks ago Link To Comment
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