In a highly unusual move, Ohio Attorney General Mike DeWine yesterday told the U.S. Supreme Court that the state’s election law banning candidates from making false statements with malice violates the Constitution’s guarantee of freedom of speech. In legal papers filed with the justices, DeWine said the Ohio law has a “chilling” impact on the speech not only of candidates, but independent organizations wishing to advertise against a candidate. The attorney general contended that the law “polices not just ‘false’ speech, but speech that indisputably is protected under the First Amendment.” Normally, the state attorney general would defend a law approved by the legislature in his or her state. The justices are expected later this spring to hear two challenges — both from Cincinnati — to the Ohio law. They have been consolidated into one case.
The first involved a political action committee which tweeted support for a ballot issue that would have prevented Cincinnati from constructing a streetcar system. Opponents of the ballot issue complained that the political-action committee had violated state election law by making false statements.
The second challenge was filed by Susan B. Anthony List, a non-profit organization that wanted to place a billboard advertisement in 2010 criticizing former Rep. Steve Driehaus’ vote for the 2010 health-care law.