February 26, 2016
On Wednesday, the 6th Circuit Court of Appeals upheld the decision of Federal District Court Judge Timothy Black to strike down Ohio’s “False Statements” statute as a violation of the First and Fourteenth Amendments to the United States Constitution. The decision in Susan B. Anthony List v. Ohio Elections Commission is here. The Finney Law Firm represented in this litigation the Coalition Opposed to Additional Spending and Taxes (COAST), which had joined the litigation as an intervening Plaintiff.
The litigation commenced in 2010 when the Susan B. Anthony List put out press releases and attempted to erect billboards that explained that Congressman’s Steve Driehaus’ vote for the ObamaCare legislation was a vote for taxpayer funding of abortions. Driehaus filed a “False Statements” complaint on the pronouncements before the Ohio Elections Commission. Susan B. Anthony List sued, claiming the statute violated its free speech rights under the U.S. Constitution. COAST intervened in the litigation claiming that it, too, desired to make these same statements but was “chilled” by the threat of administrative and criminal prosecution.
Under Ohio’s statutory scheme, anyone can bring before the Ohio Elections Commission a claim that someone uttered a “false statement” in the course of an election campaign, intending to impact the outcome of the election. Then, the panel had to first decide if there was “probable cause” that the utterance violated the statute. Discovery would ensue, and then a trial would be held to ascertain if the statement was knowingly false of reckless — in the judgment of three Republicans, three Democrats and an independent. If so, they would make a public finding of falsehood, and could refer the matter for further criminal prosecution.
The problems, of course, with this process, include that (i) it places the judgment of campaign falsehood in the hands of highly political, non-attorney, non-judicial political appointees who fail to understand the breath of First Amendment protections, (ii) it becomes a cudgel in the hands of political opponents, and (iii) therefore has the effect of suppressing entirely truthful speech for fear of a protracted and expense
Over the decades that Ohio’s False Statements statute was in effect, there have been many attempts to challenge the constitutionality of the law, but the 6th Circuit previously had ruled that a very similar statute was constitutional. Further, each new attempt to challenge the statute was rebuffed by trial courts and the appeals court as lacking “standing” to challenge the law.
In April of 2014, the Finney Law Firm went to the United States Supreme Court on that “standing” issue and prevailed 9-0 in a Clarence Thomas-authored opinion. That decision is here. That case was unique for many reasons, not the least of which was the varied amicus briefs the litigation attracted, including one from Ohio Attorney General Mike DeWine attacking the law, although he is the attorney charged under Ohio’s Constitution with defending it. That June 2014 “victory” merely placed the decision back before the trial court. In September of that year, Judge Timothy Black ruled in favor of Plaintiffs and permanently enjoined the statute.
Wednesday’s 6th Circuit ruling upheld that decision of Judge Black.
The Ohio Elections Commission can now either accept the 6th Circuit’s ruling, or can elect to ask all 15 judges on the 6th Circuit to review the ruling en banc or appeal that ruling to the United States Supreme Court. In oral argument and a prior ruling in United States v. Alvarez and at oral argument in the Susan B. Anthony List case, both liberal and conservative members of the Court indicated that they thought statutes like Ohio’s are unconstitutional. Further, the High Court accepts fewer than 1% of all cases presented to it. Thus, this should be the “end of the line” for prosecution under Ohio’s False Statements statutes.
Finally, Finney Law Firm is currently prosecuting three cases in this vein: (i) the Susan B. Anthony List case, (ii) COAST v. Ohio Elections Commission (known as the “tweets” case that is pending before the 6th Circuit), and (iii) Magda v. Ohio Election Commission that is pending before the 10th District Ohio Court of Appeals in Columbus. Wednesday’s victory should seal the fate in the other two cases as well.
In all, Wednesday was a good day for free speech in Ohio.
Media coverage of this decision is linked below:
Professor Volokh/Washington Post: Court strikes down Ohio ban on knowing or reckless falsehoods …
Cleveland Plain Dealer: Ohio politicians can legally lie in campaign ads, appeals court says
Columbus Dispatch: Appeals court strikes down ban on campaign lying