(Original story at the New York Times here.)
And we thought the First Amendment protected our right to free speech. Looks like we can add “lying in political campaigns in Ohio” to the list of exceptions to the right of freedom of speech.
Was That Twitter Blast False, or Just Honest Hyperbole?
By ADAM LIPTAK
Published: March 5, 2012
WASHINGTON — Mark W. Miller did not think Cincinnati should be spending money on a streetcar project, and he said so on Twitter. He urged his hundreds of followers to vote against the project, which was on the local ballot last November.
Here was a typical Twitter message: “15% of Cincinnati’s Fire Dept browned out today to help pay for a streetcar boondoggle. If you think it’s a waste of money, VOTE YES on 48.”
Mr. Miller, 46, a mechanical engineer, said he expected a debate. What he got instead was a legal action from supporters of the streetcar project under an Ohio law that forbids false statements in political campaigns.
In the end, Mr. Miller’s effort did not come to much: voters rejected the effort to stop the project, and the election commission dismissed the complaint against him. But he said he had learned a bitter lesson.
“I’ve got to second-guess myself every time I sit down in front of a computer,” he said. “Maybe I should moderate my stance, so I don’t get involved in an expensive action.”
Last month, at a Supreme Court argument over a federal law that makes it a crime to lie about military honors, Justice Elena Kagan asked about laws like the one that had ensnared Mr. Miller. “There are more of them than I thought that there would be,” she said, though she did not say which ones she had in mind.
It turns out there are at least 17 states that forbid some kinds of false campaign speech, according to a pending Supreme Court petition in a case involving a Minnesota law. The lower courts are split about whether such laws are constitutional.
At the argument last month, Solicitor General Donald B. Verrilli Jr., who was defending the federal law banning lies about medals, said the broader state laws are harder to square with the First Amendment because they “are going to pose a particular risk of chill.”
Mr. Miller said he feels the same way. His group, the Coalition Opposed to Additional Spending and Taxes, or Coast, sued the Ohio Election Commission, which hears complaints under the Ohio law, in federal court in November. The lawsuit seeks to have the law declared unconstitutional. “The very existence of this entity is chilling to free speech,” Mr. Miller said of the commission.
In court, the commission, represented by the office of Ohio’s attorney general, Michael DeWine, asked the court to dismiss the lawsuit on procedural grounds.
But Mr. DeWine, a Republican and a former United States senator, filed his own brief, one that was at odds with that of his office. He acknowledged a duty to defend his state’s laws, and he said he had fulfilled that duty by instructing lawyers on his staff to represent the commission. But he said he himself could not stay silent.
“What really was the final straw for me,” he said in an interview, “is looking at what can happen with social media, with private citizens who all they want to do it express their point of view. It’s a town hall. It’s a public square, really.”
According to Mr. DeWine’s brief, the election commission has found violations of the state’s false-statements law more than 110 times since 2001. Such a finding is typically the end of the matter, but prosecutions are possible. “In a worst-case scenario,” Mr. DeWine said, “there is a six-month jail sentence.”
“In my opinion,” he added, “the law as it is applied and as it is written is blatantly unconstitutional.”
The election commission’s brief relegated the First Amendment to a footnote that cited decisions upholding the Ohio law. In 1991, for instance, the United States Court of Appeals for the Sixth Circuit, in Cincinnati, said that “false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.”
In 2007, by contrast, the Washington Supreme Court struck down a similar state law.
“The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Justice James M. Johnson wrote.
The case about Mr. Miller’s Twitter messages is before Judge Michael R. Barrett of Federal District Court in Cincinnati, and he is expected to decide shortly whether the lawsuit can proceed.
Is it possible that some of Mr. Miller’s messages were false in drawing a connection between spending on streetcars and Fire Department “brown outs”? The complaint filed with the election commission said that streetcars and firefighters were covered by discrete sources of financing. Perhaps an accountant could sort it out.
Or perhaps the better question is who should decide truth or falsity in a democracy.
In 2009, at the second argument in the Citizens United case, Elena Kagan, who was then solicitor general, assured the justices that the government would not try to ban books about political candidates because the Federal Election Commission had never tried to do so.
Chief Justice John G. Roberts Jr. bristled when he heard that. “We don’t put our First Amendment rights in the hands of F.E.C. bureaucrats,” he said.
Mr. Miller said he had thought about who should decide which side is right in a political campaign.
“That’s the voters’ job,” he said.