18A - Proposed Amicus Brief

8/3/2019 18A - Proposed Amicus Brief

1/21

IN THE U.S. DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

COAST CANDIDATES PAC, et al. ::Plaintiffs :

:v. : CASE NO. 1:11-cv-00775

:OHIO ELECTIONS COMMISSION, et al. : Judge Barrett

:Defendants :

BRIEF OF MICHAEL DEWINE, ATTORNEY GENERAL OF OHIO, ASAMICUS CURIAE ANDIN SUPPORT OF NEITHER PARTY

The Attorney General has asked leave of Court to file this amicus brief in support

of the free speech rights of Ohio citizens. The Attorney General has serious concerns

about the constitutionality of Ohiosgeneralized false statement law subsections (here

specifically R.C. 3517.22(B)(2), and by analogy also R.C. 3517.21(B)(10)) that can

trigger onerous governmental review of statements made by any person designed to

persuade voters but claimed by someone else to be false. As set forth below, the

Attorney General does not express these concerns lightly, but has concluded that those

generalized subsections (as distinct from certain more specific subsections of law that ban

more precisely defined and specified falsehoods in a way less susceptible of political

abuse) can chill citizens in the candid expression of their views.

Under these generalized provisions of law, Ohioans who participate in civic

debate may find themselves summoned to Columbus to appear before a government

Commission investigating the validity of their statements and with a looming prospect of

further investigation simply because some complainant questions the accuracy of their

Case: 1:11-cv-00775-MRB Doc #: 18-1 Filed: 02/10/12 Page: 1 of 21 PAGEID #: 271


2/21

2

speech in any (undefined) regard. The U.S. Court of Appeals for the Sixth Circuit has

been clear that unless campaign speech is false, and made knowing of the falsehood or

in reckless disregard for the truth, that speech is protected by the First Amendment, and

the State must demonstrate a compelling interest to justify policing the information.

Despite that strong standard, recent history reflects that the speech policing machinery

has been employed to burden and inquire into speech that the First Amendment protects

as essential to the workings of our democratic system of self-government.

INTEREST OF AMICUS

The Attorney General of the State of Ohio submits this separate amicus filing to

present his view on legal issues relating to fundamental free speech rights of all Ohioans.

His position as amicus here is independent both of Plaintiffs and Defendants, and in

particular is independent of his representation of the Ohio Elections Commission

Defendants. He continues zealously to represent those State Defendants in a separate

capacity, acting through experienced lawyers in the Constitutional Offices section of the

Attorney Generals office1

The Attorney General makes this filing in fulfillment of his duties as Ohios chief

law officer, as an officer of the Court, and as an independently elected state official. His

independence is constitutionally designed to allow him to speak for the interests of the

State as a whole, and for its citizens. See Ohio Const., Art. III, Sec. 1; Ohio Rev. Code

109.02, 109.12-14;see also, e.g., Merrill v. Ohio Dept of Natural Resources, 955

N.E.2d 935, 944-45 (Ohio 2011) (explaining Attorney Generals independent power to

determine the States view, apart from the position of a State agency);Northeast Ohio

1The Attorney General has screened counsel on this brief from contact with that section for briefing of thiscase, and has arrangedpro bono outside counsel for this brief.



3/21

3

Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1008-09 (6th

Cir. 2006) (same;

Ohios Attorney General is both the States chief legal officer and a representative of the

people and the public interest, as well as a representative of an individual officer-

client).

The Attorney General does not urge particular findings with regard to the specific

facts of this litigation as the Court may determine them, and he takes no position on the

Elections Commissions challenge to the justiciability of this case. Rather, he writes

separately to acknowledge and underscore the important First Amendment implications

of Ohios generalized false statement regime providing official government review of

the substance of citizens political election speech.

An Attorney General has a special duty, as an officer of the Court and

representative of the public, to acknowledge when the governments side might be

wrong, and especially when a statute might be unconstitutional. See, e.g., Waxman,

Defending Congress, 79 N.C. L. Rev. 1073 (2001); Lemos, The Solicitor General As

Mediator Between Court And Agency, 2009 Mich. St. L. Rev. 185. To be sure, such an

action is reserved for rare cases. As former U.S. Solicitor General Waxman put it, when

an Act of Congress has been challenged, the Solicitor General ordinarily puts a heavy

thumb on the scale in favor of defending the statute.Defending Congress, 79 N.C. L.

Rev. at 1978. Yet, the duty to defend is not limitless and does not preclude

acknowledgment of constitutional concerns.

As the Waxman study details, the U.S. Solicitor Generalor here, a States

Attorney Generalmay address constitutional problems in several ways. First, he may

refuse to defend a statute, and both federal and state attorneys general have taken that



4/21

4

path on rare occasion. See id. at 1073, citingDickerson v. United States, 530 U.S. 428

(2000) (federal government conceded unconstitutionality of statute that sought to

overruleMiranda v. Arizona, 384 U.S. 436 (1966)); see also, e.g., United States v. Lovett,

327 U.S. 773 (1945); Simkins v. Moses Cone Hospital, 323 F.2d 959 (4th

Cir. 1963), cert.

denied, 376 U.S. 938 (1964).2 Second, he may defend a statute as part of his client

representation, while candidly acknowledging the statutes constitutional problems. See

Defending Congress, 79 N.C. L. Rev. at 1081-82. Third, he may, as the U.S. Attorney

General and Solicitor General sometimes have done, proceed on two tracks, defending

the clients position in one brief and separately filing a brief that acknowledges

constitutional problems.

The U.S. Attorney General and Solicitor General took that third course inBuckley

v. Valeo, 424 U.S. 1 (1976), the landmark campaign finance case, and the U.S. Solicitor

General took the same action inMetro Broadcasting v. FCC, 497 U.S. 547 (1990),

overruled byAdarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), a case

concerning FCC preferences for minority-owned broadcast stations. InMetro

Broadcasting, the Solicitor General fully advocated for a laws unconstitutionality. In

Buckley, Attorney General Edward Levi and Solicitor General Robert Bork noted the

laws problems, without advocating a specific conclusion (while General Levis Justice

Department fully defended the law in a separate brief).

In this casewhich involves the application of Ohios generalized false

statements law to new media twitter Internet commentary in the context of a local

2From early in the States history, Attorneys General also have brought suit themselves challengingtheconstitutionality of certain State enactments. See, e.g., State ex rel. Attorney General v. Kinney, Secy ofSt., 56 Ohio St. 721 (1897); State ex rel. Sheets, Atty Gen. v. Laylin, Secy of St. , 69 Ohio St. 1 (1903);State ex rel. Saxbe v. Brand,197 N.E.2d 44 (1964), superseded by Ohio Const. Art. VIII, Sec. 13.



5/21

5

issue electionthe Attorney General has determined that the latterBuckley model is

appropriate. As noted above, the Attorney General continues separately to defend the

Ohio Elections Commission and its officers in this case. He also files this separate amicus

brief because of the critical importance of free speech to our democratic system, and

because of the chilling effect that current Ohio law can exert on civic participation by

ordinary citizens. The law at issue here does not merely apply to candidates who choose

to run for office, or to political committees who form to advocate an issue. It can reach

any person who speaks her mind, and recent history suggests that the law is being

employed to police not just false speech, but speech that indisputably is protected under

the First Amendment. The Attorney General has concluded that his solemn duty in these

circumstances requires him to speak out through the filing of this amicus brief.

I. THE FIRST AMENDMENT IS INTENDED TO PROTECT THEFUNCTIONING OF OUR DEMOCRATIC INSTITUTIONS AND MAY

ONLY BE ABRIDGED ON THE BASIS OF A COMPELLING

GOVERNMENT INTEREST, SUBJECT TO STRICT SCRUTINY.

The First Amendment protections that have allowed our democratic processes to

flourish continue to set the United States apart from most of the world. The freedom

Americans enjoy to criticize both the operations of government and the people who

would exercise its powers is a crucial check against the abuse and overreach of state

authority. The United States is unique in what the Supreme Court has called our

profound national commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open.Buckley, 424 U.S. 1, 14 (1976) (quotingNew York

Times v. Sullivan, 376 U.S. 254, 270 (1964)). [D]iscussion of public issues [is]

integral to the operation of the system of government established by our Constitution.

The First Amendment affords the broadest protection to such political expression in order



6/21

6

to assure the unfettered exchange of ideas for the bringing about of political and social

changes desired by the people.McIntyre v. Ohio Elections Commission, 514 U.S. 334,

346 (1995) (citations omitted).

The protection given to political speech represents a profound trust in the ultimate

wisdom of the American people. Thus, when a law burdens core political speech, the

courts must apply exacting scrutiny and uphold the restriction only if it is narrowly

tailored to serve an overriding state interest.McIntyre, 514 U.S. at 347; see also Citizens

United v. Federal Election Commission, 130 S. Ct. 876, 882 (2010) (laws burdening

such speech are subject to strict scrutiny.). That standard imposes a heavy burden of

justification on the State, see, e.g., San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 17 (1973).

II. THE OHIO STATUTE CHILLS AND PENALIZES SPEECH ATCRITICAL TIMES IMMEDIATELY BEFORE ELECTIONS.

Against this background of sweeping First Amendment protection for political

speech and a strict scrutiny standard of review, the State of Ohio has erected a legislative

scheme that, while purporting to regulate false speech deemed unprotected by the

Constitution, in fact repeatedly scoops within its ambit protected speech. Ohios law then

fails to provide adequate safeguards (including prompt judicial review) against the

chilling of political speech.

The Sixth Circuit has upheld Ohios power to regulate election-related false

statements made with actual malice, at least as pertaining to statements about

candidates, because the constitutional protections of the First Amendment do not extend

to false speech made in knowing or reckless disregard for the truth. Pestrak v. Ohio

Elections Commission, 926 F.2d 573 (1991);Briggs v. Ohio Elections Commission, 61



7/21

7

F.3d 487 (1995) (upholding portions of Ohio Rev. Code 3517.21(B)). The Court further

stated, however, that such regulation must include adequate procedural safeguards,

Pestrak, 926 F.2d at 578, and that even when adequate safeguards are in place, certain

applications of the Ohio false statements law might still not be constitutional.Id. at 577,

n.2.3

In fact, neither PestraknorBriggs addressed Ohio Rev. Code 3517.22(B), dealing

with false statements in the context of ballot issues, and one federal court of appeals has

recently noted that the rationale that might support a prohibition on false statements about

candidates would not necessarily support such a prohibition on speech about ballot

issues. See281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) (Minnesota

has a long history of regulating knowingly false speech about political candidates;

However, regulation of issue-related political speech is a comparatively recent

innovation. [D]efamation law principles are justified not only by the falsity of the

speech, but also by the important private interests implicated by defamatory speech. A

ballot initiative clearly cannot be the victim of a character assassination.)

As the Sixth Circuit has underscored, in all cases of protected political speech,

the state must demonstrate a compelling interest to justify policing the information.

Briggs, 61 F.3d at 494. The state may not play the neutral role of policing the

3 Since the decision in Pestrak, certain courts in other jurisdictions have held that false speech in the

election context is not categorically excluded from First Amendment protection. See 281 Care Committeev. Arneson, 638 F.3d 621 (8th Cir. 2011) (the First Amendment does not allow the courts of a ppeals todecide whether a category of speech, on the whole, contains socially worthless information [w]e are

particularly unwilling to do so here because the speech involved about ballot initiatives is

quintessential political speech, which is at the heart of the protections of the First Amendment, anddistinguishing defamation law as centering on important private interests not implicated in this context);

Rickert v. The Public Disclosure Commission, 168 P.3d 826 (Wash. 2007) (striking down a law that, likeOhios, prohibited false statements with actual malice about a candidate but with no requirement of

defamation damages).



8/21

8

information put forth by political candidates so that their campaign materials meet certain

minimum standards;Id. It may not regulate speech based upon its implication, id.

(emphasis in original) or restrict speech that is subject to different interpretations.Id.

(citations omitted). PestrakandBriggs make clear that First Amendment protections

ensure broad protection for true or ambiguous statements. A review of the Ohio statutory

system, however, indicates that generalized false statements provisions of O.R.C.

3517.22(B)(2) and 3517.21(B)(10) police and encompass far more truthful and

ambiguous statements than untruthful speech.

A. The workings of Ohios false statements law in practice

Under Ohios generalized false statement prohibitions, anyone who joins in

political debate and makes statements deemed to be intended to influence the outcome of

an election may end up on the receiving end of a complaint filed with the Ohio Elections

Commission. A complaint may be filed by any person, including but not limited to

political opponents, who must merely attest that one of the statements was false and

made with knowing or reckless disregard of its falsity. See Ohio Rev. Code

3517.153 (complaint); 3517.21(B) and (B)(10) (any false statement concerning a

candidate); 3517.22(B)(2) (any false statement concerning a ballot proposition or

issue.)

The speaker will then find his statements reviewed by a state administrative body

that has been selected with specific reference to the political affiliations of its members.

See Ohio Rev. Code 3517.152. If the complaint alleges a false statement and is made

within 90 days of the general election, within 3 days (or 7 days if good cause is shown)

the Elections Commission will convene a panel to hold a hearing on the complaint to



9/21

9

determine whether there is probable cause to refer the matter to the full commission for a

further hearing. Ohio Rev. Code 3517.154(A), 3517.156(B)(1). Before this hearing,

the respondent may have no opportunity for discovery to learn the basis for the

complaint, a complaint that may be conclusory in nature.

The probable cause panel may then dismiss the complaint for want of probable

cause, may find probable cause and refer the complaint to the full Commission for a

merits hearing, or, ifthe evidence is insufficient for the panel to make a determination,

may request that an investigatory attorney investigate the complaint and then proceed

to a full Commission hearing. Ohio Rev. Code 3517.156(C). The Commission may

issues subpoenas compelling the attendance of witnesses and the production of papers,

books, accounts, and reports, and may seek enforcement through contempt proceedings in

the Franklin County Court of Common Pleas. Ohio Rev. Code 3517.153(B).

If the full Commission determines by clear and convincing evidence that the

respondent has violated the false statements law, the Commission may refer the matter to

the appropriate county prosecutor for prosecution, Ohio Rev. Code 3517.155(A)(1)(c),

which can result in imprisonment for up to six months, or a fine of up to $5000.00. Ohio

Rev. Code 3517.992(V). The initial hearing by a Commission panel is designed to

determine whether probable cause exists for further investigation. By definition, it comes

before any determination of falsity, or even likelihood of falsity, is made, and it can

trigger substantial investigation and discovery obligations.

Finally, it must be emphasized that the statute applies not only to campaigns or

large entities, but to any person. Thus by its express terms the law applies to an

individual blogger, to a person posting a comment on Facebook or other social media, or



10/21

10

to a homemade sign or pamphlet made by a single individual. Cf. McIntyre, 514 U.S. 334

(holding unconstitutional portions of Ohios election code applied to an individual). And

it applies to tweets, as this case demonstrates.

B. Ohios statutory scheme chills speech

COAST Candidates PAC and COAST allege that their speech is and has been

chilled by the possibility of investigation and prosecution, and will be again in the future.

Complaint 37-48. In order to evaluate this claim, should it be justiciable, the Court

must consider the operation of the Ohio statutes within the unique realm of elections.

For one on the receiving end of a false statements complaint, the impact of a

state agency declaring that it has found probable cause that an individual has lied in

the immediate run up to an election can have profound significance. And when a

probable cause finding is made close to an election, it is rare that the speaker will have

the opportunity for vindication at a full Commission hearing, let alone before a court of

law, before the election in question.

This is important because a unique feature of an election is timeliness. The

election arrives on a date certain, and once that date has passed, it is extremely rare for

any court to set aside the results of an election. A federal judicial decision to enjoin the

results of an election is a drastic, if not staggering act.Bell v. Southwell, 376 F.2d 659,

662 (5th Cir. 1962). State courts, too, are appropriately reluctant to overturn election

results. [T]he courts of Ohio are hesitant to set aside an election result and will do so

only in extraordinary cases, wrought with flagrant and determinative election

irregularities. Steven F. Huefner,Recourse for Election Worker Misconduct, in The E-

Book on Election Law (Edward Foley et al. eds. 2004), available at



11/21

11

http://moritzlaw.osu.edu/electionlaw/ebook/part5/procedures_recount02.html#_ednref6;

See also In re Election of November 6, 1990 for the Office of Attorney General , 569 N.E.

2d 447 (Ohio 1991).

This stringent standard begets a reality: official actions that cannot be corrected

before an election cannot, as a practical matter, be remedied after an election. A pre-

election probable cause determination has great effect beyond costs in time and money.

To the challenged speaker, such a determination itself may be viewed as a sanction by the

state, because it is viewed as such by large segments of the electorate. Indeed, that result

may be the precise outcome sought by the complainant in enlisting the states

enforcement procedure to his side in a campaign debate. In short, the stark realities of the

system are such that speakers who find their statements challenged in the governmental

review process may have little choice but to participate fully in the Commissions

assessment of the speech at issue.

In this case, for example, COAST alleges that the reason [complainant] delayed

filing the complaint until just before the election was to have a hearing before the

probable cause panel in order to obtain a hoped-for probable cause conclusion that the

COAST Candidates PAC violated the Statute on the eve of the election, but to not allow

sufficient time for a full and complete adjudicatory hearing before the election. Such

a practice, plaintiffs allege, is regularly done with respect to proceedings before the

Ohio Elections Commission. Complaint 29.

The Attorney General offers no opinion on the truth or falsity of this element of

plaintiffs claim regarding their circumstances. However, the facts explain why such a

claim might seem plausible to citizens: At issue in the complaint were 20 allegedly false



12/21

12

tweets, all but six of which were sent before October 1 and the last of which was sent

on October 21, yet the complaint was not filed until October 28, only 10 days before the

election that the challenged speaker allegedly intended to influence. It is not unduly

cynical to suggest that in at least some Elections Commission matters, complainants may

time their submissions to achieve maximum disruption of their political opponents while

calculating that an ultimate decision on the merits will be deferred until after the relevant

election. Bringing campaign practices actions against a candidate who has

purportedly disseminated false statements is not always about correcting the record or

remedying injury to reputation. It is often also about inflicting political damage. In this

respect, the [action] itself can be a weapon of substantial political force. William P.

Marshall, False Campaign Speech and the First Amendment, 153 U. Pa. L. Rev. 285, 300

(2004).

Even where, as here, the Commission does not find probable cause, the damage is

often done. The speaker is forced to use time and resources responding to the complaint,

typically at the exact moment that campaign is peaking and his time and resources are

best used elsewhere. 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; and if the allegations turn

out to be unfounded, there is no possibility of timely remedy.

The timing of complaints at the Commission supports the notion that some

partisans seek to time complaints to trigger actions immediately before the election, and

that in such cases the finding of probable cause is itselfthe result that the complainant

seeks. Ohio Elections Commission records as reviewed by the undersigned counsel show



13/21

13

that in 2011, eight complaints were filed alleging false statements under Ohio Rev. Code

3517.22(B) (including the COAST complaints at issue in this suit). Seven appear to have

reached a probable cause panel within one week of the election. Thirteen such complaints

were filed in 2010, and nine reached a panel within one week of the election.4

Moreover, typically, no penalty is sought beyond the finding of a violation. Since

2001, the Elections Commission has found a violation of 3517.22(B) in 14 cases, and

violations of 3517.21(B) in 97 cases. Only one of those cases has been referred for

prosecution. In many cases, the Commission specifically reports that the penalty is the

finding of a violation. See, e.g., Griffin v. Ohio Democratic Party, Ohio Elections

Commission 2010E-76 (2010).

The time-sensitive nature of the election and the authoritative imprimatur given

to the Commission as a purportedly expert, impartial state agency make a probable cause

hearing a serious matter,even beyond the ramifications of future hearings andinvestigations. Once the state has harmed a speakers cause by making a finding (whether

of probable cause or of violation) for which no judicial review can, as a practical matter,

be had before the election, the speaker has been effectively penalized for speaking. That

is a factor that influences participation before the Commission on both sides.

C. The statutory scheme lacks adequate safeguards to protect First Amendment rights

While the Commissions proceedings themselves can be a de facto penalty in the

elections context, the Commission operates without the types of procedural safeguards

required by PestrakandBriggs.

4 Data on Ohio Elections Commission filings and dispositions in this brief was provided by theCommission pursuant to a phone request for publicly available information on Commission actions, andcompiled by Counsel. Counsel has not attached the raw data, which consists of hundreds of pages of casesummaries, but will gladly and expeditiously make it available to the Court and to all counsel if sorequested.



14/21

14

The Pestrakcourt upheld the constitutionality of the forerunner to what is now

Ohio Rev. Code 3517.21(B), but also invalidated other provisions. Among other things,

Pestraknoted that clear and convincing evidence was required before punishment

could be levied against a speaker in areas trenching on the first amendment.926 F.2d at

578 (quotingNew York Times, 376 U.S. at 285-86). By definition, the probable cause

determinations of the Commission are not based on clear and convincing evidence. See

Ohio Rev. Code 3517.156. Thus, to the extent that a probable cause finding has the

practical effect of penalizing speech, it violates this requirement ofPestrak.

Further, the Pestrakcourt noted that [e]ven when there is the strongest reason for

restraint, as in the possibility of public disorder, there must be an immediate opportunity

for judicial review. 926 F.2d at 578. Yet if the action complainants seek is not a

prosecution, or even a final agency action, but merely the ability to file a complaint, to

engage the chilling power of the state, and perhaps to obtain a probable cause finding,

it is clear that no adequate judicial review can be had before the election. This truly is a

situation where justice delayed is justice denied for the innocent speaker.

D. The statutory scheme pulls within its ambit much protected speech

The Sixth Circuit has been emphatic: Unless campaign speech is false, and

make knowing of the falsehood or in reckless disregard for the truth, that speech is

protected by the First Amendment, and the State must demonstrate a compelling interest

to justify policing the information.Briggs,61 F.3d at 494 (emphasis added).

Few respondents contest an adverse Commission finding in court because the

election will be over, won or lost, by the time any judicial hearing takes place, and so the

remedy is largely meaningless. Nevertheless, the few challenges that do take place



15/21

15

demonstrate that the State is policing a good deal of speech that is clearly within the

ambit of constitutionally protected speech. And even when these speakers are vindicated,

it is too late, as the election is over and the damage done.

For example, in Service Employees International Union District 1199 v. Ohio

Elections Commission, 822 N.E.2d 424 (10th Dist. App. 2004), a union was vindicated

and the OECs findings reversed, but not until a full year and a half after the election.

Probable cause in the matter was found within two weeks of the election. A full merits

hearing was held one day before the election, at which the Commission found a false

statement violation by a vote of 4-3.Id. at 427-28. The next year the Court of Common

Pleas affirmed the Commissions finding.Id. at 428. The case then went to the Court of

Appeals, which found that [t]he statement at issue [was] ambiguous and susceptible of

different interpretations, and that even assuming falsity for the sake of analysis, the

record lacks clear and convincing evidence that SEIU knew that the statement was false

or acted in reckless disregard Moreover, SEIUs interpretation of the statement is

rational and has a basis in fact.Id. at 430, 432. Thus, roughly a year and a half after the

election, the matter was remanded with orders to reverse the Commissions determination

against the Union.

Other reported post-Briggs cases reflect similar stories. See, e.g., Flannery v.

Ohio Elections Commission, 804 N.E.2d 1032 (10th Dist. App. 2004) (reversing OEC

finding of violation nearly two years after election; complaint had been brought against

Democratic candidate for Secretary of State by incumbents campaign manager;

Commission found probable cause and ultimately violations; trial court reversed; Court

of Appeals ultimately held that, even assuming arguendo that Flannerys statements



16/21

16

were false, the Commission failed to sustain its burden that the statements were made

with actual malice.); Committee to Elect Straus Prosecutor v. Ohio Elections

Commission, No. 07AP-12, 2007 Ohio App. LEXIS 4797 (10th Dist. 2007) (affirming

trial court reversal of two findings of violations where statements were not shown to have

been made with actual malice; appeals court ruling came two years and eleven months

after the election in which the statements were made); Steve Buehrer for Congress v.

Ohio Elections Commission, No. 07CVF12-17565 (Franklin Cnty. C.P., Nov. 17, 2009)

(Two years after the election, Commission false statement finding reversed: There was

no evidence before the Commission that the statement was false, or published

knowing the same to be false or with reckless disregard of whether it was false or not.).

The public documents from the Ohio Elections Commission further show the

burden that the false statements law places onprotectedspeech. Between 2001 and 2010,

the Commission found violations of O.R.C. 3517.22(B) in 14 cases. The Commission

dismissed ten cases after a hearing. Eighteen were dismissed because the complainant

withdrew the complaint or failed to prosecute (typically after the electiona further

indication that the goal is less an ultimate finding of a violation than a probable cause

finding before the election). Ninety-six were dismissed with findings of no probable

cause. Not one was referred for prosecution.5

Thus, in the vast majority of cases speakers who have engaged inprotected

speech are being required, typically in the late stages of a campaign, to devote time and

resources to responding to complaints. And under O.R.C. 3517.154, the Commission

5Counsel compiled these numbers from publicly available information. See n. 2, supra. Though greater innumber, the complaints alleging violations of O.R.C. 3517.21(B) between 2001 and 2010 tell a similarstory: 90 violations, 48 dismissals after a merits hearing, 260 dismissals at the probable cause stage, and112 complaints dismissed by the complainant or by the Commission for failure to prosecute. A substantialportion of these complaints arise under the generalized false statements provisions of subsection (B)(10).



17/21

17

cannot even weed out frivolous complaints before the probable cause hearing unless

the complaint is technically deficient. False statement complaints almost by definition

are filed by persons with hostile political motives. For such complainants, the fact that the

complaint is dismissed, whether at probable cause or after a full hearing, may be almost

beside the point. The damage inflicted is the time and cost to the opposition of having to

defend itself in the campaigns final days. Vindication in court 18 months or two years

later is scarcely vindication at all.

In short, an Ohio citizen who chooses to exercise his or her civic responsibilities

by speaking out on issues of the day may face the issuance of government subpoenas,

targeting by a government-appointed investigative attorney (even absent a finding of

probable cause), and a Commission determination labeling her speech false just

before the election, all with the threat of criminal prosecution in the background. These

factors, perhaps in combination with concerns regarding the political impact of an

adverse preliminary finding in the days before the election that will not be subject to

immediate judicial review, may impel the speaker to take on the burden of responding to

the complaint. This is so even if the respondent believes his or her speech is true, and it

comes at the timein the days immediately before the electionwhen such response is

most distracting and burdensome.

For the individual pamphleteer or blogger, especially, such interaction with

government can be terrifying. Thanks to modern media such as the Internet and Twitter,

it is now remarkably easy for any citizen to become a publisher of news and

commentary. This development has had a broad democratizing effect consistent with the

purpose of the First Amendment. The idea that Ohios citizens must hire an attorney or



18/21

18

even engage in extensive investigation before communicating on Facebook or Twitter,

however, undercuts the most basic norms of political participation and free speech.

But there is a way to avoid both the substantial cost and burden of responding,

and the possibility of being unfairly tarred by a probable cause or merits finding on the

eve of the election: By shying away from provocative speech that, while not false in the

considered opinion of the speaker, might nonetheless be challenged as false by political

opponents. While the state may proscribe, investigate, and punish unprotected speech, it

may not do so in a manner that chills protected speech.Rickhoff v. Willing, No. SA-10-

CA-140-XR, 2010 U.S. Dist. LEXIS 96557, at 27 (W.D. Tex. Sept. 14, 2010).

The cases and the Commissions own numbers indicate that this chilling of

protected speech is exactly what occurs under Ohios false statements law.

III. EXPERIENCE CASTS CONSIDERABLE DOUBT ON THEVIABILITY OF THE OHIO FALSE STATEMENTS STATUTE

UNDER STRICT SCRUTINY REVIEW.

A review of the statutory mechanisms involved, and the effect that the statute has

on speech that is clearly entitled to full constitutional protection underBriggs, suggests

that in the proper procedural setting, inquiry will be appropriate into whether Ohios

scheme of policing speech can withstand constitutional scrutiny under current First

Amendment jurisprudence. Such constitutional inquiry is of fundamental importance

because the right of the citizen to inquire, to hear, to speak, and to use information to

reach consensus is a precondition of enlightened self-government and a necessary means

to protect it. Citizens United, 130 S. Ct. at 898. There is practically universal agreement

that a major purpose of [the First Amendment] was to protect the free discussion of

governmental affairs.Mills v. Alabama, 384 U.S. 214, 218 (1966). Given the command



19/21

19

that such regulations be reviewed under strict scrutiny, requiring proof of a compelling

state interest and narrow tailoring on facts that have not been established, that inquiry

will be difficult to withstand.

In State of Washington v. Vote No! Committee, 957 P.2d 691 (1998), the

Washington Supreme Court struck down a statute prohibiting false statements made with

actual malice. Under strict scrutiny, the court noted, the State bears a well-nigh

insurmountable burden to justify [statutory] restriction[s] on political speech.

[E]ven if the State possessed a compelling interest here, it must also provethe statute at issue is necessary to serve that interest. However, the

record here demonstrates [the statute] may be manipulated by candidatesto impugn the electoral process rather than promote truthfulness.Ultimately, the States claimed compelling interest to shield the public

from falsehoods during a political campaign assumes the people of thisstate are too ignorant or disinterested to investigate, learn, and determinefor themselves the truth or falsity in political debate, and it is the properrole of the government itself to fill the void. At its worst the statute ispure censorship, allowing government to undertake prosecution of citizenswho, in their view, have abused the right of political debate.

Id. at 698-99 (citations omitted).

As the U.S. Supreme Court has stated, [t]he very purpose of the First

Amendment is to foreclose public authority from assuming a guardianship of the public

mind In this field, every person must be his own watchman for truth, because the

forefathers did not trust any government to separate the true from the false for us.Meyer

v. Grant, 484 U.S. 414, 419-420 (1988).

CONCLUSION

All political power is inherent in the people. Ohio Const. art. I, 2. Our system

of government depends on the willingness of citizens to enter into the political arena and

debate the issues of the day. Ohios generalized prohibitions on false statements made



20/21

20

in the course of a political campaign burden core, truthful speech protected by the First

Amendment and by Ohios broader constitutional protections of speech.

The Commissions own data and recent case law suggests that its machinery has

been used extensively by private actors to gain political advantage in circumstances

where malicious falsity cannot ultimately be established. In light of the ongoing stream of

false statement claims made under the most generalized and unspecific of Ohios false

statements lawssome obviously more justified than othersthe Attorney General

submits this filing as a friend of the court and the legal process, and suggests that if not in

this case, then in some appropriate juncture, Ohios machinery for policing the substance

of political speech will need to be recalibrated to remove the threat of inappropriate

governmental burdens on Ohioans who desire to speak their minds at election time.

Respectfully Submitted,

MICHAEL DEWINEOHIO ATTORNEY GENERAL

/s/ Bradley Alan Smith_________________Bradley Alan Smith (0046887)Special Counsel to the Attorney Generalc/o Capital University Law School303 E. Broad StreetColumbus, Ohio 43215Tel: (614) [email protected]

mailto:[email protected]:[email protected]:[email protected]


21/21

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served on the

parties to this action via the Courts electronic case filing system on this 10th day of

February, 2012.

/s/Bradley Alan SmithBradley Alan Smith (0046887)


Date post:	06-Apr-2018
Category:	Documents
Upload:	coast
View:	228 times
Download:	0 times

18A - Proposed Amicus Brief

Documents