COLUMBUS, Ohio—Back in 1995, the Ohio legislature apparently was a lot more savvy about politics than it is today. Back then, they weren't so busy trying to throw poor people off of welfare and putting as many obstacles as possible in the way of women seeking abortions. No, back then, at least one of their concerns was that in political races involving contentious candidates and ballot initiatives, the folks supporting one side or another shouldn't lie about what their opponents said or did.
This concern led to the passage of Ohio Code Section 3517.21, involving "false statements in campaign materials," where the legislature stated in part that, "(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following: ... (10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate."
Seems pretty simple: Lie about what a candidate said or did (or don't give a shit about whether what you said about him/her was accurate) and the candidate can file a complaint with the Ohio elections commission, and you can be prosecuted for it. A no-brainer, right? After all, since the vast majority of mass media reporting these days is mainly stenography—"This person/group said this but on the other hand, this person/group said that"—with reporters refusing or neglecting to check whether the statements they're reporting are accurate, any lie told about a candidate takes on a life of its own, even if there's no factual basis whatsoever for the statement.
We see this sort of crap happening all the time. Does anyone seriously think, as some Republicans are claiming, that Hillary Clinton actually "committed treason" or is a "traitor to her country" because she didn't use the official government email server? Or that Bernie Sanders is similarly "a traitor" or "a communist" because his political philosophy is "Democratic Socialism"?
In the case at bar, in 2010, Steven Dreihaus, a Democrat, was representing Ohio's 1st District in the U.S. House of Representatives, and the Susan B. Anthony List (SBA List), an anti-abortion group, wanted to make sure he didn't get a second term by putting up the billboard pictured above to claim that Dreihaus had "voted FOR taxpayer-funded abortion."
In fact, Dreihaus had done no such thing. He had voted for the Affordable Care Act, which was (and is) prohibited by federal law (the "Hyde Amendment") from using federal funds to pay for elective abortions, and the ACA specifically states that "an issuer opting to cover abortion care in marketplace plans must follow particular administrative requirements to ensure that no federal funds go toward abortion."
Of course, that fact hasn't prevented every anti-abortion group in the country from claiming that any legislator who voted for the ACA had "voted for taxpayer-funded abortion" even to this day—but the point is, that's a lie, and when Dreihaus got wind that SBA List was planning to run their billboard all over Ohio's 1st District, he threatened the billboard company with a lawsuit under Section 3517.21 if they posted the lie.
The billboard company did indeed back down, and SBA List sued Dreihaus for his actions. The suit was later joined by another conservative group, the Coalition Opposed to Additional Spending and Taxes (COAST), which claimed that Section 3517.21 chilled its ability to make whatever statements it wanted about candidates. Both groups claimed that they were afraid that legal complaints would be filed against them if they continued to publish their lies.
At first, the SBA List and COAST's complaint was dismissed by a federal judge, who opined that any fear they had of legal action was "speculative" and "far too attenuated" (that is, highly unlikely to occur based on Dreihaus' actions) to survive summary judgment. The Sixth Circuit concurred ... until the case made it to the U.S. Supreme Court in mid-2014.
"Here, SBA and COAST contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact," wrote Justice Clarence Thomas for the unanimous high court. "We agree: Petitioners have alleged a credible threat of enforcement.
"SBA's insistence that the allegations in its press release were true did not prevent the commission panel from finding probable cause to believe that SBA had violated the law the first time around," Thomas' 20-page opinion states. "And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this court's decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law."
Clearly, SBA List's billboard was a lie; generally speaking, there is no taxpayer-funded abortion allowed in the ACA except for certain specific instances like saving the life of the pregnant woman, and if SBA List had spent any time actually reading the (admittedly incredibly long) bill, it would know that—but obviously, the List's political objectives outweighed its duty to the facts, and they got called on it.
But that doesn't matter now.
On remand, the Sixth Circuit has issued its new opinion, reversing the old one and finding not so much that no legal action can be taken against the lying person or organization, but that the laws wasn't written well enough to exclude lies that aren't material to the campaign platform and statements made outside the political process altogether.
"Here, Ohio’s interests in preserving the integrity of its elections, protecting 'voters from confusion and undue influence,' and 'ensuring that an individual’s right to vote is not undermined by fraud in the election process' are compelling...," wrote Judge R. Guy Cole, Jr. for the three-judge panel. "But Ohio’s laws do not meet the second requirement [of strict scrutiny]: being narrowly tailored to protect the integrity of Ohio’s elections. Thus, this is not such a 'rare case' that survives strict scrutiny... Thus, influencing an election by lying about a political candidate's shoe size or vote on whether to continue a congressional debate is just as actionable as lying about a candidate's party affiliation or vote on an important policy issue, such as the Affordable Care Act."
The panel also expressed concern about the possibility likelihood that some candidate or group would file frivilous complaints against its opponents, which even the expedited hearing process contained in the law might not be responsive enough to dismiss the complaint before news of the filing affected the election itself.
So go ahead, Ohioans (or anyone who wants to affect elections in Ohio): Say anything you want about a candidate or ballot initiative. You're protected.
But frankly, this is a knotty problem for free speech advocates, who generally follow the philosophy that "the answer to bad speech is more speech." And California, of course, has no law similar to Ohio's.
The problem, however, is that lies do affect elections. For example, AIDS Healthcare Foundation (AHF) has denied the statement from Free Speech Coalition that its proposed ballot initiative, the California Safer Sex in the Adult Film Industry Act, that performers would be required, under the Act, to wear goggles, rubber gloves, dental dams and other "protective equipment" during on-camera sex acts, calling such statements "The Big Lie" and likening FSC to Nazi Germany.
To the contrary, anyone reading the Act can see that FSC's statement is factually correct. There is little doubt that as the November, 2016 election approaches, AHF will use that lie and many others to attempt to get the initiative passed—and there's nothing to stop the multi-million-dollar organization from spending outrageous amounts to get that message out—while the adult industry must count on donations from producers and other supporters to attempt to counter such lies.
Perhaps California needs a (specific, well-tailored) law that would allow one party in an election to challenge the false statements made by another party. Otherwise, what with the Supreme Court's Citizens United ruling allowing anyone (including corporations) to donate as much money as he/she/it likes to a particular candidate or issue, the ability to spread a politically volatile lie on billboards and in other media across the state virtually guarantees that the concept of "free elections" may easily go the way of the Dodo bird.
The Sixth Circuit's ruling on remand in SBA List, et al. v. Dreihaus, et al. can be found here.
