Bradley Smith is the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School in Columbus and one of the country’s foremost experts on the evils of campaign finance laws. He is the author of Unfree Speech: The Folly of Campaign Finance Reform. It was his distinguished opposition to campaign finance laws that got him appointed to a six-year term on the Federal Election Commission by President Clinton in 2000. I cited Professor Smith’s work on the FEC in the Weekly Standard column “Dream palace of the goo-goos.”
Professor Smith has just filed a friend-of-the-court brief in federal court in Cincinnati questioning the constitutionality of Ohio’s political “false statements” law. (The brief was filed in Coast Candidates PAC v. Ohio Election Commission.) Informed readers may recall that it was this law that was used in 2010 to go after the Susan B. Anthony Fund for ads (relying on statements of the Conference of Catholic Bishops) saying that Obamacare would include funding for abortion. In the particular case here, COAST (an anti-tax group) is charged with “lying” by suggesting that Cincinnati’s spending on a street car project has led to reduced fire and safety services — supporters of the street car argue that since the funds spent on the street car come from a different account, they do not detract from safety funding.
Professor Smith is, as usual, on the side of the angels in this matter. What makes the brief notable, however, is that he has filed it on behalf of the Attorney General of the State of Ohio, Mike DeWine, even while Attorney General DeWine’s office defends the Ohio Election Commission. Here are a few highlights from the brief that strike close to home:
Under Ohio’s generalized “false statement” prohibitions, anyone who joins in political debate and makes statements deemed to be intended to influence the outcome of an election may end up on the receiving end of a complaint filed with the Ohio Elections Commission…. A complaint may be filed by “any person,” including but not limited to political opponents, who must merely attest that one of the statements was “false” and made with knowing or reckless disregard of its “falsity.”
The speaker will then find his statements reviewed by a state administrative body that has been selected with specific reference to the political affiliations of its members….
.…by its express terms the law applies to an individual blogger, to a person posting a comment on Facebook or other social media, or to a homemade sign or pamphlet made by a single individual….
[A]n Ohio citizen who chooses to exercise his or her civic responsibilities by speaking out on issues of the day may face the issuance of government subpoenas, targeting by a government-appointed “investigative attorney” (even absent a finding of “probable cause”), and a Commission determination labeling her speech “false” just before the election, all with the threat of criminal prosecution in the background….
For the individual pamphleteer or blogger, especially, such interaction with government can be terrifying. Thanks to modern media such as the Internet and Twitter, it is now remarkably easy for any citizen to become a “publisher” of news and commentary. This development has had a broad democratizing effect consistent with the purpose of the First Amendment. The idea that Ohio’s citizens must hire an attorney or even engage in extensive investigation before communicating on Facebook or Twitter, however, undercuts the most basic norms of political participation and free speech….
As the U.S. Supreme Court has stated, “[t]he very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind…In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”
“All political power is inherent in the people.” Our system of government depends on the willingness of citizens to enter into the political arena and debate the issues of the day. Ohio’s generalized prohibitions on “false statements” made in the course of a political campaign burden core, truthful speech protected by the First Amendment and by Ohio‟s broader constitutional protections of speech.
Attorney General DeWine is in the news this week for shifting his support from Romney to Santorum in the GOP presidential contest. Even more newsworthy is his willingness to stake out a position defending the right of free speech against Ohio’s own misguided law, especially when his position can so easily be mischaracterized as the defense of a right to lie in political campaigns. It’s a bold step for him to take and we salute him in taking it.