New York Times

In Ohio, a Law Bans Lying in Elections. Justices and Jesters Alike Get a Say.

MARCH 24, 2014

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By ADAM LIPTAK

WASHINGTON — The Supreme Court gives lawyers who argue before it a little
guidebook. One tip: “Attempts at humor usually fall flat.”

P. J. O’Rourke, the satirist, is taking his chances. He has filed a funny
supporting brief in a Supreme Court case over what the government can do to
address lies in election campaigns. Mr. O’Rourke says spin and smear are central
to American democracy.

But his brief, amusing though it is, cannot compete with the work of a
professional politician. Michael DeWine, Ohio’s attorney general, is filing briefs
on both sides of the case.

“It certainly is rare, and it should be rare,” Mr. DeWine, a Republican, said
in an interview. But he said he had dual constitutional obligations.

One was to defend an Ohio law that makes it a crime to say all sorts of false
things during political campaigns. The other was to explain to the justices how
enforcement of the law can do violence to the First Amendment.

“What’s important is not only how the law is written, but how it is used in
practice as a club in political campaigns,” Mr. DeWine said.

The Ohio law makes it a crime to make knowingly or recklessly false
statements about political candidates that are intended to help elect or defeat
them. Complaints, which can be filed by anyone, are heard by the Ohio Elections
Commission, which makes preliminary determinations and can recommend
criminal prosecution. The first offense could lead to six months’ imprisonment,
the second to disenfranchisement.

The law applies to everyone. It covers, Mr. DeWine said, “the Internet and
blogs and Facebook and citizens exercising their First Amendment rights in the
town square.”

Mr. DeWine arranged to have outside lawyers to make those points on his
behalf.

“In practice,” that brief said, “Ohio’s false statements law allows the state’s
legal machinery to be used extensively by private actors to gain political
advantage.”

Staff lawyers in the attorney general’s office will file a second brief this
week, this time defending the law. “I told them to go at it hard,” Mr. DeWine
said, adding that the two sets of lawyers have not been in contact.

The case, Susan B. Anthony List v. Driehaus, No. 13-193, will be argued next
month. It was brought by an anti-abortion group that had sought to put up a
billboard attacking Steven Driehaus, a Democrat, in the midst of what turned
out to be his unsuccessful 2010 run for re-election to the House of
Representatives.

“Shame on Steve Driehaus!” the billboard would have said. “Driehaus voted
FOR taxpayer-funded abortion.” The advertising company that owned the space
refused to rent it after hearing from Mr. Driehaus’s lawyers, who invoked the
Ohio law.

The statement itself, based on Mr. Driehaus’s vote for the Affordable Care
Act, may be true in some sense, but you would need strong coffee and an
accountant to understand the reasoning. On the other hand, it is hardly clear
that assessing the truth of a political advertisement is the sort of thing better
entrusted to bureaucrats and prosecutors than to the citizenry.

That is the point Mr. O’Rourke and the libertarian Cato Institute made in
their cheeky, hilarious and quite possibly counterproductive brief. They said they
were “unsure how true the allegation is given that the health care law seems to
change daily, but it certainly isn’t as truthy as calling a mandate a tax.”
Truthiness, the brief explained, is a characteristic of a statement made
“from the gut” or because it “feels right” but “without regard to evidence or
logic.” The reference to “calling a mandate a tax” is, of course, a nod to Chief
Justice John G. Roberts Jr.’s 2012 opinion upholding a central part of the
Affordable Care Act.

The guidebook for Supreme Court lawyers does not address whether it is a
bad idea to mock the chief justice of the United States as you seek his vote, but
that does seem to be the consensus view.

The actual legal question before the justices is, as is so often the case at the
court, a preliminary one. Here it is whether the anti-abortion group is entitled to
sue at all. On the one hand, the Ohio Elections Commission said there was
probable cause to think the group had violated the law. On the other, the matter
fizzled out after Mr. Driehaus lost the election.

The federal appeals court in Cincinnati dismissed the suit, saying the group
no longer had anything to worry about. In earlier decisions, courts have upheld
the law.

But that was before United States v. Alvarez, a Supreme Court decision
issued the same day as the health care ruling. It struck down a federal law that
made it a crime to lie about receiving military decorations, and it cast doubt over
the constitutionality of the Ohio law and similar ones in 15 other states.

Mr. O’Rourke connected the dots on the first page of his brief, assuring the
justices that he, his lawyers, his family members and his pets “have all won the
Congressional Medal of Honor.”

A version of this article appears in print on March 25, 2014, on page A16 of the New York edition with the
headline: In Ohio, a Law Bans Lying in Elections. Justices and Jesters Alike Get a Say..