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Supreme Court Ruling Could Affect State's Campaign Speech Laws


The U.S. Supreme Court has ruled an anti-abortion group may challenge an Ohio law that bars people from making false statements about political candidates during a campaign.

Ohio Public Radio's Jo Ingles reports.

The case involves the conservative Susan B. Anthony Llist. Back in 2010, that group wanted to run an ad against former U.S. Representative Steve Driehaus, saying he supported taxpayer funded abortion. He didn’t. But he did support President Obama’s affordable care act….and the group says that support amounted to support for taxpayer funded abortion. Driehaus claimed the ads were false because they misrepresented the true facts and therefore, they violated the state’s false speech law….and the state elections commission found probable cause that he was correct. But after Driehaus lost that election, he dropped the suit. But the Susan B Anthony List hasn’t given up the fight. The group says it will move quickly to try to have the law tossed out. In an interview with Ohio Public Radio’s Jo Ingles, Ohio State University Law Professor Dan Tokaji says he thinks the Susan B. Anthony List might have a good shot at striking down at least part of the law. 

Tokaji – I think there are at least some portions of Ohio’s false campaign speech law that are quite vulnerable to a constitutional challenge and, in my opinion, probably should be struck down.  On the other hand,t here are other aspects of it that could be upheld.  The law is designed to get at false statements that are made in political campaign.  We can all see that there is some harm in knowingly false statements made in political campaigns.  On the other hand, there are serious free speech interests under the first amendment.  And there’s a real worry that truthful statements about candidates will be chilled as a result of Ohio’s law.

Ingles – So you said you are think there are portions of the law that should be struck down.  Tell me about those.

Tokaji – I think the portion of Ohio’s law that is most difficult to defend is its prohibition on false statements in an issue campaign and referendum campaigns.  You can’t defame a ballot measure in the same way you can defame a person.  On the other hand, I think some aspects of Ohio’s law are at least defensible on the ground that they are designed to prevent defamation or libel that are knowingly false statements that were made in reckless disregard in whether they are true or false.  The state may be able to defend that aspect of the law, again, to the extent that it prohibits speech that would rise to the level of defamation under established person in the law.

Ingles – The Susan B. Anthony List is saying that they are going to take this to court so what does that mean for Ohioans and what does that mean for this law in the short term?

Tokaji- I think it’s a really good thing that Susan B Anthony won this portion of the case and will be able to make its very important first amendment claims in the court.  And the court, I assume, will take into consideration the chilling effect that this law has as well as the justifications the state presents that support this law, including the need to prevent defamatory statements.  And at the end of the day, it is part of our system that federal courts make the decision as to whether a law does or does not comply with the first amendment.  Tokaji notes other states have similar laws on their books and if this law is eventually struck down in court, it could affect those other laws too.

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