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COAST CANDIDATES PAC, et al. Plaintiffs v. OHIO ELECTIONS COMMISSION, et al. Defendants

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CASE NO. 1:11-cv-00775 Judge Barrett

BRIEF OF MICHAEL DEWINE, ATTORNEY GENERAL OF OHIO, AS AMICUS CURIAE AND IN SUPPORT OF NEITHER PARTY The Attorney General has asked leave of Court to file this amicus brief in support of the free speech rights of Ohio citizens. The Attorney General has serious concerns about the constitutionality of Ohios generalized false statement law subsections (here specifically R.C. 3517.22(B)(2), and by analogy also R.C. 3517.21(B)(10)) that can trigger onerous governmental review of statements made by any person designed to persuade voters but claimed by someone else to be false. As set forth below, the Attorney General does not express these concerns lightly, but has concluded that those generalized subsections (as distinct from certain more specific subsections of law that ban more precisely defined and specified falsehoods in a way less susceptible of political abuse) can chill citizens in the candid expression of their views. Under these generalized provisions of law, Ohioans who participate in civic debate may find themselves summoned to Columbus to appear before a government Commission investigating the validity of their statements and with a looming prospect of further investigation simply because some complainant questions the accuracy of their

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speech in any (undefined) regard. The U.S. Court of Appeals for the Sixth Circuit has been clear that unless campaign speech is false, and made knowing of the falsehood or in reckless disregard for the truth, that speech is protected by the First Amendment, and the State must demonstrate a compelling interest to justify policing the information. Despite that strong standard, recent history reflects that the speech policing machinery has been employed to burden and inquire into speech that the First Amendment protects as essential to the workings of our democratic system of self-government.

INTEREST OF AMICUS The Attorney General of the State of Ohio submits this separate amicus filing to present his view on legal issues relating to fundamental free speech rights of all Ohioans. His position as amicus here is independent both of Plaintiffs and Defendants, and in particular is independent of his representation of the Ohio Elections Commission Defendants. He continues zealously to represent those State Defendants in a separate capacity, acting through experienced lawyers in the Constitutional Offices section of the Attorney Generals office1 The Attorney General makes this filing in fulfillment of his duties as Ohios chief law officer, as an officer of the Court, and as an independently elected state official. His independence is constitutionally designed to allow him to speak for the interests of the State as a whole, and for its citizens. See Ohio Const., Art. III, Sec. 1; Ohio Rev. Code 109.02, 109.12-14; see also, e.g., Merrill v. Ohio Dept of Natural Resources, 955 N.E.2d 935, 944-45 (Ohio 2011) (explaining Attorney Generals independent power to determine the States view, apart from the position of a State agency); Northeast Ohio

The Attorney General has screened counsel on this brief from contact with that section for briefing of this case, and has arranged pro bono outside counsel for this brief.

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Coalition for the Homeless v. Blackwell, 467 F.3d 999, 1008-09 (6th Cir. 2006) (same; Ohios Attorney General is both the States chief legal officer and a representative of the people and the public interest, as well as a representative of an individual officerclient). The Attorney General does not urge particular findings with regard to the specific facts of this litigation as the Court may determine them, and he takes no position on the Elections Commissions challenge to the justiciability of this case. Rather, he writes separately to acknowledge and underscore the important First Amendment implications of Ohios generalized false statement regime providing official government review of the substance of citizens political election speech. An Attorney General has a special duty, as an officer of the Court and representative of the public, to acknowledge when the governments side might be wrong, and especially when a statute might be unconstitutional. See, e.g., Waxman, Defending Congress, 79 N.C. L. Rev. 1073 (2001); Lemos, The Solicitor General As Mediator Between Court And Agency, 2009 Mich. St. L. Rev. 185. To be sure, such an action is reserved for rare cases. As former U.S. Solicitor General Waxman put it, when an Act of Congress has been challenged, the Solicitor General ordinarily puts a heavy thumb on the scale in favor of defending the statute. Defending Congress, 79 N.C. L. Rev. at 1978. Yet, the duty to defend is not limitless and does not preclude acknowledgment of constitutional concerns. As the Waxman study details, the U.S. Solicitor Generalor here, a States Attorney Generalmay address constitutional problems in several ways. First, he may refuse to defend a statute, and both federal and state attorneys general have taken that

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path on rare occasion. See id. at 1073, citing Dickerson v. United States, 530 U.S. 428 (2000) (federal government conceded unconstitutionality of statute that sought to overrule Miranda v. Arizona, 384 U.S. 436 (1966)); see also, e.g., United States v. Lovett, 327 U.S. 773 (1945); Simkins v. Moses Cone Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964).2 Second, he may defend a statute as part of his client representation, while candidly acknowledging the statutes constitutional problems. See Defending Congress, 79 N.C. L. Rev. at 1081-82. Third, he may, as the U.S. Attorney General and Solicitor General sometimes have done, proceed on two tracks, defending the clients position in one brief and separately filing a brief that acknowledges constitutional problems. The U.S. Attorney General and Solicitor General took that third course in Buckley v. Valeo, 424 U.S. 1 (1976), the landmark campaign finance case, and the U.S. Solicitor General took the same action in Metro Broadcasting v. FCC, 497 U.S. 547 (1990), overruled by Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995), a case concerning FCC preferences for minority-owned broadcast stations. In Metro Broadcasting, the Solicitor General fully advocated for a laws unconstitutionality. In Buckley, Attorney General Edward Levi and Solicitor General Robert Bork noted the laws problems, without advocating a specific conclusion (while General Levis Justice Department fully defended the law in a separate brief). In this casewhich involves the application of Ohios generalized false statements law to new media twitter Internet commentary in the context of a local

From early in the States history, Attorneys General also have brought suit themselves challenging the constitutionality of certain State enactments. See, e.g., State ex rel. Attorney General v. Kinney, Secy of St., 56 Ohio St. 721 (1897); State ex rel. Sheets, Atty Gen. v. Laylin, Secy of St., 69 Ohio St. 1 (1903); State ex rel. Saxbe v. Brand,197 N.E.2d 44 (1964), superseded by Ohio Const. Art. VIII, Sec. 13.

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issue electionthe Attorney General has determined that the latter Buckley model is appropriate. As noted above, the Attorney General continues separately to defend the Ohio Elections Commission and its officers in this case. He also files this separate amicus brief because of the critical importance of free speech to our democratic system, and because of the chilling effect that current Ohio law can exert on civic participation by ordinary citizens. The law at issue here does not merely apply to candidates who choose to run for office, or to political committees who form to advocate an issue. It can reach any person who speaks her mind, and recent history suggests that the law is being employed to police not just false speech, but speech that indisputably is protected under the First Amendment. The Attorney General has concluded that his solemn duty in these circumstances requires him to speak out through the filing of this amicus brief. I. THE FIRST AMENDMENT IS INTENDED TO PROTECT THE FUNCTIONING OF OUR DEMOCRATIC INSTITUTIONS AND MAY ONLY BE ABRIDGED ON THE BASIS OF A COMPELLING GOVERNMENT INTEREST, SUBJECT TO STRICT SCRUTINY. The First Amendment protections that have allowed our democratic processes to flourish continue to set the United States apart from most of the world. The freedom Americans enjoy to criticize both the operations of government and the people who would exercise its powers is a crucial check against the abuse and overreach of state authority. The United States is unique in what the Supreme Court has called our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Buckley, 424 U.S. 1, 14 (1976) (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)). [D]iscussion of public issues [is] integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order

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to assure the unfettered exchange of ideas for the bringing about of political and social changes desired by the people. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 346 (1995) (citations omitted). The protection given to political speech represents a profound trust in the ultimate wisdom of the American people. Thus, when a law burdens core political speech, the courts must apply exacting scrutiny and uphold the restriction only if it is narrowly tailored to serve an overriding state interest. McIntyre, 514 U.S. at 347; see also Citizens United v. Federal Election Commission, 130 S. Ct. 876, 882 (2010) (laws burdening such speech are subject to strict scrutiny.). That standard imposes a heavy burden of justification on the State, see, e.g., San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17 (1973). II. THE OHIO STATUTE CHILLS AND PENALIZES SPEECH AT CRITICAL TIMES IMMEDIATELY BEFORE ELECTIONS. Against this background of sweeping First Amendment protection for political speech and a strict scrutiny standard of review, the State of Ohio has erected a legislative scheme that, while purporting to regulate false speech deemed unprotected by the Constitution, in fact repeatedly scoops within its ambit protected speech. Ohios law then fails to provide adequate safeguards (including prompt judicial review) against the chilling of political speech. The Sixth Circuit has upheld Ohios power to regulate election-related false statements made with actual malice, at least as pertaining to statements about candidates, because the constitutional protections of the First Amendment do not extend to false speech made in knowing or reckless disregard for the truth. Pestrak v. Ohio Elections Commission, 926 F.2d 573 (1991); Briggs v. Ohio Elections Commission, 61

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F.3d 487 (1995) (upholding portions of Ohio Rev. Code 3517.21(B)). The Court further stated, however, that such regulation must include adequate procedural safeguards, Pestrak, 926 F.2d at 578, and that even when adequate safeguards are in place, certain applications of the Ohio false statements law might still not be constitutional. Id. at 577, n.2.3 In fact, neither Pestrak nor Briggs addressed Ohio Rev. Code 3517.22(B), dealing with false statements in the context of ballot issues, and one federal court of appeals has recently noted that the rationale that might support a prohibition on false statements about candidates would not necessarily support such a prohibition on speech about ballot issues. See 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) (Minnesota has a long history of regulating knowingly false speech about political candidates; However, regulation of issue-related political speech is a comparatively recent innovation. [D]efamation law principles are justified not only by the falsity of the speech, but also by the important private interests implicated by defamatory speech. A ballot initiative clearly cannot be the victim of a character assassination.) As the Sixth Circuit has underscored, in all cases of protected political speech, the state must demonstrate a compelling interest to justify policing the information. Briggs, 61 F.3d at 494. The state may not play the neutral role of policing the

Since the decision in Pestrak, certain courts in other jurisdictions have held that false speech in the election context is not categorically excluded from First Amendment protection. See 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) (the First Amendment does not allow the courts of appeals to decide whether a category of speech, on the whole, contains socially worthless information [w]e are particularly unwilling to do so here because the speech involved about ballot initiatives is quintessential political speech, which is at the heart of the protections of the First Amendment, and distinguishing defamation law as centering on important private interests not implicated in this context); Rickert v. The Public Disclosure Commission, 168 P.3d 826 (Wash. 2007) (striking down a law that, like Ohios, prohibited false statements with actual malice about a candidate but with no requirement of defamation damages).

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information put forth by political candidates so that their campaign materials meet certain minimum standards; Id. It may not regulate speech based upon its implication, id. (emphasis in original) or restrict speech that is subject to different interpretations. Id. (citations omitted). Pestrak and Briggs make clear that First Amendment protections ensure broad protection for true or ambiguous statements. A review of the Ohio statutory system, however, indicates that generalized false statements provisions of O.R.C. 3517.22(B)(2) and 3517.21(B)(10) police and encompass far more truthful and ambiguous statements than untruthful speech. A. The workings of Ohios false statements law in practice Under Ohios 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. See Ohio Rev. Code 3517.153 (complaint); 3517.21(B) and (B)(10) (any false statement concerning a candidate); 3517.22(B)(2) (any false statement concerning a ballot proposition or issue.) 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. See Ohio Rev. Code 3517.152. If the complaint alleges a false statement and is made within 90 days of the general election, within 3 days (or 7 days if good cause is shown) the Elections Commission will convene a panel to hold a hearing on the complaint to

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determine whether there is probable cause to refer the matter to the full commission for a further hearing. Ohio Rev. Code 3517.154(A), 3517.156(B)(1). Before this hearing, the respondent may have no opportunity for discovery to learn the basis for the complaint, a complaint that may be conclusory in nature. The probable cause panel may then dismiss the complaint for want of probable cause, may find probable cause and refer the complaint to the full Commission for a merits hearing, or, if the evidence is insufficient for the panel to make a determination, may request that an investigatory attorney investigate the complaint and then proceed to a full Commission hearing. Ohio Rev. Code 3517.156(C). The Commission may issues subpoenas compelling the attendance of witnesses and the production of papers, books, accounts, and reports, and may seek enforcement through contempt proceedings in the Franklin County Court of Common Pleas. Ohio Rev. Code 3517.153(B). If the full Commission determines by clear and convincing evidence that the respondent has violated the false statements law, the Commission may refer the matter to the appropriate county prosecutor for prosecution, Ohio Rev. Code 3517.155(A)(1)(c), which can result in imprisonment for up to six months, or a fine of up to $5000.00. Ohio Rev. Code 3517.992(V). The initial hearing by a Commission panel is designed to determine whether probable cause exists for further investigation. By definition, it comes before any determination of falsity, or even likelihood of falsity, is made, and it can trigger substantial investigation and discovery obligations. Finally, it must be emphasized that the statute applies not only to campaigns or large entities, but to any person. Thus by its express terms the law applies to an individual blogger, to a person posting a comment on Facebook or other social media, or

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to a homemade sign or pamphlet made by a single individual. Cf. McIntyre, 514 U.S. 334 (holding unconstitutional portions of Ohios election code applied to an individual). And it applies to tweets, as this case demonstrates. B. Ohios statutory scheme chills speech COAST Candidates PAC and COAST allege that their speech is and has been chilled by the possibility of investigation and prosecution, and will be again in the future. Complaint 37-48. In order to evaluate this claim, should it be justiciable, the Court must consider the operation of the Ohio statutes within the unique realm of elections. For one on the receiving end of a false statements complaint, the impact of a state agency declaring that it has found probable cause that an individual has lied in the immediate run up to an election can have profound significance. And when a probable cause finding is made close to an election, it is rare that the speaker will have the opportunity for vindication at a full Commission hearing, let alone before a court of law, before the election in question. This is important because a unique feature of an election is timeliness. The election arrives on a date certain, and once that date has passed, it is extremely rare for any court to set aside the results of an election. A federal judicial decision to enjoin the results of an election is a drastic, if not staggering act. Bell v. Southwell, 376 F.2d 659, 662 (5th Cir. 1962). State courts, too, are appropriately reluctant to overturn election results. [T]he courts of Ohio are hesitant to set aside an election result and will do so only in extraordinary cases, wrought with flagrant and determinative election irregularities. Steven F. Huefner, Recourse for Election Worker Misconduct, in The EBook on Election Law (Edward Foley et al. eds. 2004), available at


Case: 1:11-cv-00775-MRB Doc #: 18-1 Filed: 02/10/12 Page: 11 of 21 PAGEID #: 281; See also In re Election of November 6, 1990 for the Office of Attorney General, 569 N.E. 2d 447 (Ohio 1991). This stringent standard begets a reality: official actions that cannot be corrected before an election cannot, as a practical matter, be remedied after an election. A preelection probable cause determination has great effect beyond costs in time and money. To the challenged speaker, such a determination itself may be viewed as a sanction by the state, because it is viewed as such by large segments of the electorate. Indeed, that result may be the precise outcome sought by the complainant in enlisting the states enforcement procedure to his side in a campaign debate. In short, the stark realities of the system are such that speakers who find their statements challenged in the governmental review process may have little choice but to participate fully in the Commissions assessment of the speech at issue. In this case, for example, COAST alleges that the reason [complainant] delayed filing the complaint until just before the election was to have a hearing before the probable cause panel in order to obtain a hoped-for probable cause conclusion that the COAST Candidates PAC violated the Statute on the eve of the election, but to not allow sufficient time for a full and complete adjudicatory hearing before the election. Such a practice, plaintiffs allege, is regularly done with respect to proceedings before the Ohio Elections Commission. Complaint 29. The Attorney General offers no opinion on the truth or falsity of this element of plaintiffs claim regarding their circumstances. However, the facts explain why such a claim might seem plausible to citizens: At issue in the complaint were 20 allegedly false


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tweets, all but six of which were sent before October 1 and the last of which was sent on October 21, yet the complaint was not filed until October 28, only 10 days before the election that the challenged speaker allegedly intended to influence. It is not unduly cynical to suggest that in at least some Elections Commission matters, complainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election. Bringing campaign practices actions against a candidate who has purportedly disseminated false statements is not always about correcting the record or remedying injury to reputation. It is often also about inflicting political damage. In this respect, the [action] itself can be a weapon of substantial political force. William P. Marshall, False Campaign Speech and the First Amendment, 153 U. Pa. L. Rev. 285, 300 (2004). Even where, as here, the Commission does not find probable cause, the damage is often done. The speaker is forced to use time and resources responding to the complaint, typically at the exact moment that campaign is peaking and his time and resources are best used elsewhere. The state has constructed a process that allows its enforcement mechanisms to be used to extract a cost from those seeking to speak out on elections, right at the most crucial time for that particular type of speech; and if the allegations turn out to be unfounded, there is no possibility of timely remedy. The timing of complaints at the Commission supports the notion that some partisans seek to time complaints to trigger actions immediately before the election, and that in such cases the finding of probable cause is itself the result that the complainant seeks. Ohio Elections Commission records as reviewed by the undersigned counsel show


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that in 2011, eight complaints were filed alleging false statements under Ohio Rev. Code 3517.22(B) (including the COAST complaints at issue in this suit). Seven appear to have reached a probable cause panel within one week of the election. Thirteen such complaints were filed in 2010, and nine reached a panel within one week of the election.4 Moreover, typically, no penalty is sought beyond the finding of a violation. Since 2001, the Elections Commission has found a violation of 3517.22(B) in 14 cases, and violations of 3517.21(B) in 97 cases. Only one of those cases has been referred for prosecution. In many cases, the Commission specifically reports that the penalty is the finding of a violation. See, e.g., Griffin v. Ohio Democratic Party, Ohio Elections Commission 2010E-76 (2010). The time-sensitive nature of the election and the authoritative imprimatur given to the Commission as a purportedly expert, impartial state agency make a probable cause hearing a serious matter, even beyond the ramifications of future hearings and investigations. Once the state has harmed a speakers cause by making a finding (whether of probable cause or of violation) for which no judicial review can, as a practical matter, be had before the election, the speaker has been effectively penalized for speaking. That is a factor that influences participation before the Commission on both sides. C. The statutory scheme lacks adequate safeguards to protect First Amendment rights While the Commissions proceedings themselves can be a de facto penalty in the elections context, the Commission operates without the types of procedural safeguards required by Pestrak and Briggs.

Data on Ohio Elections Commission filings and dispositions in this brief was provided by the Commission pursuant to a phone request for publicly available information on Commission actions, and compiled by Counsel. Counsel has not attached the raw data, which consists of hundreds of pages of case summaries, but will gladly and expeditiously make it available to the Court and to all counsel if so requested.


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The Pestrak court upheld the constitutionality of the forerunner to what is now Ohio Rev. Code 3517.21(B), but also invalidated other provisions. Among other things, Pestrak noted that clear and convincing evidence was required before punishment could be levied against a speaker in areas trenching on the first amendment. 926 F.2d at 578 (quoting New York Times, 376 U.S. at 285-86). By definition, the probable cause determinations of the Commission are not based on clear and convincing evidence. See Ohio Rev. Code 3517.156. Thus, to the extent that a probable cause finding has the practical effect of penalizing speech, it violates this requirement of Pestrak. Further, the Pestrak court noted that [e]ven when there is the strongest reason for restraint, as in the possibility of public disorder, there must be an immediate opportunity for judicial review. 926 F.2d at 578. Yet if the action complainants seek is not a prosecution, or even a final agency action, but merely the ability to file a complaint, to engage the chilling power of the state, and perhaps to obtain a probable cause finding, it is clear that no adequate judicial review can be had before the election. This truly is a situation where justice delayed is justice denied for the innocent speaker. D. The statutory scheme pulls within its ambit much protected speech The Sixth Circuit has been emphatic: Unless campaign speech is false, and make knowing of the falsehood or in reckless disregard for the truth, that speech is protected by the First Amendment, and the State must demonstrate a compelling interest to justify policing the information. Briggs, 61 F.3d at 494 (emphasis added). Few respondents contest an adverse Commission finding in court because the election will be over, won or lost, by the time any judicial hearing takes place, and so the remedy is largely meaningless. Nevertheless, the few challenges that do take place


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demonstrate that the State is policing a good deal of speech that is clearly within the ambit of constitutionally protected speech. And even when these speakers are vindicated, it is too late, as the election is over and the damage done. For example, in Service Employees International Union District 1199 v. Ohio Elections Commission, 822 N.E.2d 424 (10th Dist. App. 2004), a union was vindicated and the OECs findings reversed, but not until a full year and a half after the election. Probable cause in the matter was found within two weeks of the election. A full merits hearing was held one day before the election, at which the Commission found a false statement violation by a vote of 4-3. Id. at 427-28. The next year the Court of Common Pleas affirmed the Commissions finding. Id. at 428. The case then went to the Court of Appeals, which found that [t]he statement at issue [was] ambiguous and susceptible of different interpretations, and that even assuming falsity for the sake of analysis, the record lacks clear and convincing evidence that SEIU knew that the statement was false or acted in reckless disregard Moreover, SEIUs interpretation of the statement is rational and has a basis in fact. Id. at 430, 432. Thus, roughly a year and a half after the election, the matter was remanded with orders to reverse the Commissions determination against the Union. Other reported post-Briggs cases reflect similar stories. See, e.g., Flannery v. Ohio Elections Commission, 804 N.E.2d 1032 (10th Dist. App. 2004) (reversing OEC finding of violation nearly two years after election; complaint had been brought against Democratic candidate for Secretary of State by incumbents campaign manager; Commission found probable cause and ultimately violations; trial court reversed; Court of Appeals ultimately held that, even assuming arguendo that Flannerys statements


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were false, the Commission failed to sustain its burden that the statements were made with actual malice.); Committee to Elect Straus Prosecutor v. Ohio Elections Commission, No. 07AP-12, 2007 Ohio App. LEXIS 4797 (10th Dist. 2007) (affirming trial court reversal of two findings of violations where statements were not shown to have been made with actual malice; appeals court ruling came two years and eleven months after the election in which the statements were made); Steve Buehrer for Congress v. Ohio Elections Commission, No. 07CVF12-17565 (Franklin Cnty. C.P., Nov. 17, 2009) (Two years after the election, Commission false statement finding reversed: There was no evidence before the Commission that the statement was false, or published knowing the same to be false or with reckless disregard of whether it was false or not.). The public documents from the Ohio Elections Commission further show the burden that the false statements law places on protected speech. Between 2001 and 2010, the Commission found violations of O.R.C. 3517.22(B) in 14 cases. The Commission dismissed ten cases after a hearing. Eighteen were dismissed because the complainant withdrew the complaint or failed to prosecute (typically after the electiona further indication that the goal is less an ultimate finding of a violation than a probable cause finding before the election). Ninety-six were dismissed with findings of no probable cause. Not one was referred for prosecution.5 Thus, in the vast majority of cases speakers who have engaged in protected speech are being required, typically in the late stages of a campaign, to devote time and resources to responding to complaints. And under O.R.C. 3517.154, the Commission

Counsel compiled these numbers from publicly available information. See n. 2, supra. Though greater in number, the complaints alleging violations of O.R.C. 3517.21(B) between 2001 and 2010 tell a similar story: 90 violations, 48 dismissals after a merits hearing, 260 dismissals at the probable cause stage, and 112 complaints dismissed by the complainant or by the Commission for failure to prosecute. A substantial portion of these complaints arise under the generalized false statements provisions of subsection (B)(10).


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cannot even weed out frivolous complaints before the probable cause hearing unless the complaint is technically deficient. False statement complaints almost by definition are filed by persons with hostile political motives. For such complainants, the fact that the complaint is dismissed, whether at probable cause or after a full hearing, may be almost beside the point. The damage inflicted is the time and cost to the opposition of having to defend itself in the campaigns final days. Vindication in court 18 months or two years later is scarcely vindication at all. In short, an 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. These factors, perhaps in combination with concerns regarding the political impact of an adverse preliminary finding in the days before the election that will not be subject to immediate judicial review, may impel the speaker to take on the burden of responding to the complaint. This is so even if the respondent believes his or her speech is true, and it comes at the timein the days immediately before the electionwhen such response is most distracting and burdensome. 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 Ohios citizens must hire an attorney or


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even engage in extensive investigation before communicating on Facebook or Twitter, however, undercuts the most basic norms of political participation and free speech. But there is a way to avoid both the substantial cost and burden of responding, and the possibility of being unfairly tarred by a probable cause or merits finding on the eve of the election: By shying away from provocative speech that, while not false in the considered opinion of the speaker, might nonetheless be challenged as false by political opponents. While the state may proscribe, investigate, and punish unprotected speech, it may not do so in a manner that chills protected speech. Rickhoff v. Willing, No. SA-10CA-140-XR, 2010 U.S. Dist. LEXIS 96557, at 27 (W.D. Tex. Sept. 14, 2010). The cases and the Commissions own numbers indicate that this chilling of protected speech is exactly what occurs under Ohios false statements law. III. EXPERIENCE CASTS CONSIDERABLE DOUBT ON THE VIABILITY OF THE OHIO FALSE STATEMENTS STATUTE UNDER STRICT SCRUTINY REVIEW. A review of the statutory mechanisms involved, and the effect that the statute has on speech that is clearly entitled to full constitutional protection under Briggs, suggests that in the proper procedural setting, inquiry will be appropriate into whether Ohios scheme of policing speech can withstand constitutional scrutiny under current First Amendment jurisprudence. Such constitutional inquiry is of fundamental importance because the right of the citizen to inquire, to hear, to speak, and to use information to reach consensus is a precondition of enlightened self-government and a necessary means to protect it. Citizens United, 130 S. Ct. at 898. There is practically universal agreement that a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs. Mills v. Alabama, 384 U.S. 214, 218 (1966). Given the command


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that such regulations be reviewed under strict scrutiny, requiring proof of a compelling state interest and narrow tailoring on facts that have not been established, that inquiry will be difficult to withstand. In State of Washington v. Vote No! Committee, 957 P.2d 691 (1998), the Washington Supreme Court struck down a statute prohibiting false statements made with actual malice. Under strict scrutiny, the court noted, the State bears a well-nigh insurmountable burden to justify [statutory] restriction[s] on political speech. [E]ven if the State possessed a compelling interest here, it must also prove the statute at issue is necessary to serve that interest. However, the record here demonstrates [the statute] may be manipulated by candidates to impugn the electoral process rather than promote truthfulness. Ultimately, the States claimed compelling interest to shield the public from falsehoods during a political campaign assumes the people of this state are too ignorant or disinterested to investigate, learn, and determine for themselves the truth or falsity in political debate, and it is the proper role of the government itself to fill the void. At its worst the statute is pure censorship, allowing government to undertake prosecution of citizens who, in their view, have abused the right of political debate. Id. at 698-99 (citations omitted). 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. Meyer v. Grant, 484 U.S. 414, 419-420 (1988). CONCLUSION All political power is inherent in the people. Ohio Const. art. I, 2. Our system of government depends on the willingness of citizens to enter into the political arena and debate the issues of the day. Ohios generalized prohibitions on false statements made


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in the course of a political campaign burden core, truthful speech protected by the First Amendment and by Ohios broader constitutional protections of speech. The Commissions own data and recent case law suggests that its machinery has been used extensively by private actors to gain political advantage in circumstances where malicious falsity cannot ultimately be established. In light of the ongoing stream of false statement claims made under the most generalized and unspecific of Ohios false statements lawssome obviously more justified than othersthe Attorney General submits this filing as a friend of the court and the legal process, and suggests that if not in this case, then in some appropriate juncture, Ohios machinery for policing the substance of political speech will need to be recalibrated to remove the threat of inappropriate governmental burdens on Ohioans who desire to speak their minds at election time. Respectfully Submitted, MICHAEL DEWINE OHIO ATTORNEY GENERAL /s/ Bradley Alan Smith_________________ Bradley Alan Smith (0046887) Special Counsel to the Attorney General c/o Capital University Law School 303 E. Broad Street Columbus, Ohio 43215 Tel: (614) 236-6317


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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on the parties to this action via the Courts electronic case filing system on this 10th day of February, 2012.

/s/Bradley Alan Smith Bradley Alan Smith (0046887)