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Can Ohio’s false statements law be repaired?
SCOTT PIEPHO
Cases and Controversies
Published: October 17, 2014
For the second time this year, a court decision has struck down regulations aimed at false or misleading statements during political campaigns. In In re Judicial Campaign Complaint Against O’Toole, the Ohio Supreme Court struck part of one of the judicial canons that regulates conduct during judicial campaigns. Earlier this year, in Susan B. Anthony List v. Dreihaus, Judge Timothy Black of the U.S. District Court for the Southern District of Ohio held that a state law prohibiting false or misleading statements in nonjudicial races violates the First Amendment.
For anyone not utterly jaded and cynical about campaigns, the judicial attack on the power of the state to regulate against false statements is unnerving. Regardless of what happens in the short run, it is worth considering whether any such laws can survive the current court’s zeal to expand the First Amendment into a tool for radically deregulating the political process.
The Susan B. Anthony List, an anti-abortion group sought an injunction against the state enforcing the statute against a planned campaign targeting members of Congress who voted for Obamacare. The court signaled that it is likely to uphold Judge Black’s decision when it overturned an earlier decision dismissing as nonjusticiable. Judge Black’s opinion quotes liberally from the high court’s opinion in SBA List I.
About one-third of states currently have some version of a false statements law. Many are similar to Ohio’s which allows a candidate who is allegedly the target of a false statement. The Ohio law then allows for a probable cause hearing, discovery and an administrative hearing before the Ohio Elections Commission to determine the whether the statement violates the law.
As Judge Black’s opinion notes, the same procedural problems in the Ohio law probably doom it no matter what standard the court adopts for judging laws against false statements. The law provides no provision for weeding out frivolous cases before the hearing and the hearing itself sets a low bar for proceeding on a complaint. Thus the law can easily be used as a means of disrupting a campaign’s momentum by forcing a candidate to respond to a complaint.
That said, the court’s decision in SBA List I opinion makes sweeping statements against the notion that the government can play any constructive role in curtailing manifestly, provably false speech. The court casts doubt on whether there should be any remedy for false speech other than true speech.
But limiting the redress for false statements to attempts to correct the record carries a number of problems. First it ignores how people process information. If confronted with two contradictory statements but without the information needed to evaluate them, people will at least entertain the idea that either can be true. The fact that the false statement has been entered into the discourse will have some effect on the ability to believe the statement that is true.
Furthermore, people often believe that laws prohibit statements that are purely false as opposed to merely misleading. Often the lack of a government response will be taken as a quantum of evidence that the statement contains some element of truth.
Finally the decision ignores the effect that money has on the ability to correct false speech. By suggesting that the government can play no corrective role when a candidate is the subject of false statements, the court threatens to amplify the effect of Citizens United.
The SBA List I analysis resembles that in Citizen’s United in that the court looks at the world as it present exists and declares it acceptable. The respective decisions declared that government regulation could not be justified to (in this case) lessen the degree of falsity in campaign ads or (in the Citizens United case) decrease the level of corporate influence in elections.
But like Citizens United, this decision will not result in perpetuation of the status quo. It will fundamentally alter that status quo by radically deregulating it. Just like campaigns in the post-Citizens United world have featured deluges of corporate money, in a post-SBA List world we are likely to witness an uptick in black-is-white levels of falsehoods directed against candidates.
The question remains whether the court will allow any government intervention against false statements in campaigns. The Ohio Supreme Court in O’Toole drew a line between prohibition against false statements, which are constitutional, and rule against true but misleading statements which it struck down. This is a sensible distinction, though a difficult one to police. It makes sense to proceed with caution when regulating based on the truth of a statement, but it is difficult to accept that the Constitution prohibits regulation of statements that are.