In this campaign season with negative ads in full attack mode filling our TV’s, I’ve been wondering why there have been no reported complaints to the Ohio Election Commission (See Below). An article in this morning’s Columbus Dispatch explains that on September 11, U. S. District Judge Timothy Black declared unconstitutional a key part of Ohio’s campaign law that prohibited campaign lying and provided for complaints to the OEC. (See Judge Black’s ruling here.)
This law protected the public via an independent commission. To me, it seems that revoking this Ohio law is a step backward for our democracy and a green light to the worst possible campaign advertisements. In fact, this criminal lawyer orlando says that revoking the law that protected the public interest has caused a huge blow to the notion of democracy.
Judge Black was appointed by President Obama is 2009. I’m sort of amazed that judge appointed by a Democratic president would take such action and I’m amazed that the American Civil Liberty Union (ACLU) filed a brief urging him to do so.
The ACLU in its amicus brief urged Ohio Revised Code 3517.21 (10) be ruled unconstitutional. It equated the OEC with “the government” and argued, “It is not the government’s place to pass judgment on what political speech is acceptable, and certainly not in the context of criticizing a public official. Political speech cannot be so flagrantly encumbered.”
Judge Black seems lost in a hopeless fog when he approvingly quotes the Supreme Court (and Frank Underwood):
“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012) (emphasis supplied). The more modern recitation of this longstanding and fundamental principle of American law was recently articulated by Frank Underwood in House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”
Michael Smith at his law blog takes Black to task for quoting Frank Underwood. Says Smith, “The true meaning of Underwood’s quote is probably the last thing the court wants to espouse.”
Judge Black seems hopelessly naive. Black writes, “In short, the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is.” Wouldn’t it be wonderful if the forces for truth had a lot of money so that lies and misinformation could be revealed for what they are. But our political system doesn’t work that way. Wouldn’t it be wonderful if we lived in a society where voters had easy access to truth? Black gives no clue as to what could “encourage truthful speech.”
Lies have no place in the political arena and serve no purpose other than to undermine the integrity of the democratic process. The problem is that, at times, there is no clear way to determine whether a political statement is a lie or the truth. What is certain, however, is that we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the Government might persecute those who criticize it. … Here in Ohio, there is no reason to believe that the OEC is positioned to determine what is true and what is false when it comes to political statements. In fact, it is entirely possible that a candidate could make a truthful statement, yet the OEC would determine a few days before an election that the statement is false, penalizing the candidate for speaking the truth and chilling further truthful speech.
We know speech isn’t free and the more money one has, the more speech one has. The assertion that, “we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth,” to me seems unreasonable. We believe that there is a role for government in assuring citizens that the integrity of their food, drugs and water are maintained at an acceptable standard. Why does it make sense to think that there is not a role for government in assuring citizens that the integrity of their political processes also meet a reasonable standard?
Black has destroyed the Ohio law that gives a government agency (The OEC) some authority to check the most outrageous outright lies in political advertisements. Thanks to the ruling by Judge Black, the role for government in Ohio has been greatly diminished in assuring safety or assuring a fair playing field in our democracy. His thinking seems in the clouds and not grounded in the reality of our political world. His thinking makes no practical sense.
Judge Black Ruled Unconstitutional: Ohio Revised Code 3517.21(B)(9)-(10):
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:
(9) Make a false statement concerning the voting record of a candidate or public official;
(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.
The Ohio Elections Commission
The OEC, originally established in 1974, was reformulated as a seven member body in 1995, and reestablished as an independent government agency. Membership consists of six members (three members from each major political party in Ohio), appointed by the Governor upon recommendation by the Democratic and Republican caucuses of the General Assembly. By statute, the seventh member cannot be affiliated with either major political party and is appointed by the six partisan members of the Commission.