This past week held major developments in the landmark case of COAST Candidates PAC v. Ohio Elections Commission, to some known as the "Tweets" case, specifically,
- the filing by Ohio Attorney General Mike DeWine of a brief pointing out the infirmities of Ohio's false claims statute
- in the "Stolen Valor" case before the U.S. Supreme Court, oral argument strayed to statutes like Ohio's and the Justices and the U.S. Solicitor General indicated it was unconstitutional.
Ohio is one of a handful of states with a statute punishing "false" political speech in the context of election campaigns (i.e., in the vast majority of jurisdictions, "free speech" reins and those aggrieved can rely upon traditional defamation principles). Unfortunately, the Ohio Elections Commission has failed to understand a proper role for those regulating in the First Amendment arena, irresponsibly running roughshod over those who participate in electoral campaigns and punishing speech that is entirely true, and unquestionably defensible under the U.S. and Ohio constitutions.
Knowing this miserable history of the OEC, advocates of greater taxes and spending in Cincinnati filed a Complaint against certain "Tweets" of COAST tying streetcar spending to brownouts of fire departments. They hoped for a last minute "swipe" at COAST by the OEC and a hostile news media over entirely true statements from COAST in the great Streetcar debate.
COAST sued in federal court to stop their unconstitutional interference in COAST's free speech rights. That case is pending before federal district court Judge Mike Barrett.
Actions of the Ohio Attorney General
The Ohio Attorney General is the statutory counsel of the Ohio Elections Commission, defending the OEC in that suit. This is his obligation under the Ohio Constitution. (Interestingly, decades before becoming Ohio's Attorney General, DeWine was involved with a similar case in which the false claims jurisdiction of the OEC was at issue, so he is quite familiar with its over-reaching.) DeWine is also charged in his oath of office with defending the U.S. and Ohio Constitutions. Thus, he must have been in a quandary in defending such an obviously unconstitutional law, and its bizarre enforcement by the OEC.
Well, this past week, in response to that dilemma, DeWine did a remarkable and brave thing -- he filed an Amicus Brief pointing out to the Court the unconstitutionality of Ohio's False Claims statute. He is represented by preeminent First Amendment attorney Brad Smith, a former FEC Commissioner, to present this ground-breaking argument.
It remains up to Judge Barrett to boldly do the right thing, and strike this unconstitutional law, but COAST's collective hat goes off to Mike DeWine for this courageous move in defense of First Amendment liberties.
U.S. Supreme Court Developments
In a related development, the U.S. Supreme Court heard oral arguments this past week in U.S. v. Alvarez. This is the case in which the Defendant is challenging the "Stolen Valor Act," in which the Congress made it a crime to falsely claim military honors one did not have.
In that oral argument, Justice Kennedy said: "[The statute] presumes that the government is going to have a ministry of truth . . . and I just don’t think that’s our tradition.” Also, that oral argument saw the following exchange among Justice Kagan, the U.S. Solicitor General and Justice Scalia, all quite illuminating of the problems with Ohio's statute:
JUSTICE KAGAN: . . . what about these State statutes -- there are more of them than I thought that there would be -- that say no demonstrable falsehoods by a political candidate in a political race, and prohibit demonstrable falsehoods by political candidates? How would your analysis apply to those? Would they come out the other end as constitutional?
[SOLICITOR] GENERAL VERRILLI: I think that those kinds of statutes are going to have a lot harder time getting through the Court's “breathing space” analysis because the context in which they arise is one that would create a more significant risk of chill -
. . .
JUSTICE SCALIA: So maybe we allow a certain amount of puffing in political speech as well.... Nobody believes all that stuff, right?
It is so thoroughly refreshing to have an Attorney General, the Solicitor General, and at least three Justices on the U.S. Supreme Court who understand how pernicious the Ohio statute is. COAST hopes Judge Barrett shows a similar degree of wisdom in this regard.