Supreme Court Argument: Are Ohio’s Political Speech Regulations Constitutional?

1851 Center amicus brief maintains that political class uses elections commission and its regulations to attack grass-roots citizen activity

supremecourtColumbus, OH – The United States Supreme Court heard oral arguments on Susan B. Anthony List v. Driehaus – whether Ohioans can stop the enforcement actions of the Ohio Elections Commission, and further, whether regulations prohibiting “false statements” regarding “public officials” or “candidates” violate the First Amendment to the United States Constitution.

Elections Commissions actions are often filed by well-heeled political veterans such as incumbents and well-financed campaigns, to intimidate and squelch the speech of political rivals and dissenters. These legal actions are often effective, since political novices with little money are unable to travel to Columbus and hire a lawyer to defend themselves at multiple lengthy Commission hearings.

The 1851 Center for Constitutional Law filed an amicus curiae brief in this case on behalf of numerous Ohioans who have been frivolously forced to appear before the Commission to defend their political speech.

The 1851 Center Brief explains and argues as follows:

  • “Ohio’s Statute allows a politically-interested party to file a complaint against another, no matter whether the respondent’s speech is true or not,” meaning that “Ohioans have consistently faced commission hearings and even potential fines and criminal penalties in response to clearly-protected core political speech.”
  • “Ohio maintains an administrative scheme that, on the premise of policing only intentionally false speech, subjects political speech to harassment.”

The brief recounts Ohio cases where Congressman Pat Tiberi’s affiliates filed an action to silence a primary opponent who was mocking his voting record; where Congressman Latta filed an action to silence those indicating that he “has a record of supporting higher taxes”; where a favored candidate who lost a township trustee election sued those who chatted on Facebook about whether the candidate was a “pornographer”; where a powerful ballot issue effort sued a citizen who criticized a government light rail plan as “one of the worst plans in the country”; where a township trustee alleged that his opponent was not truly an “organic” farmer; and numerous cases where upstart local candidates simply omitted the word “for” in their campaign literature (“John Smith, Treasurer” vs. “John Smith for Treasurer”).

“A common question asked regarding this case is whether the 1851 Center and others are defending a ‘right to lie.’ The answer is ‘no.’ Our efforts here are aimed at defending Ohioans from a panel of state government bureaucrats empowered to arbitrate what is true and what is false, in the realm of political debate,” according to Maurice Thompson, Executive Director of the 1851 Center.

“Our view, based on our experience litigating these type of cases, is that a government Commission cannot be trusted to accurately distinguish true political speech from false speech; and further, citizens need breathing space to criticize public officials, without concern that those officials will turn around and sue them for cavalier statements.”

“The Supreme Court has repeatedly confirmed that “in the free society ordained by our Constitution, it is not the government, but the people individually as citizens and candidates who must retain control over the quantity and range of debate on public issues.”

In addition to the 1851 Center’s amicus brief, 1851 Center Chairman Bradley Smith has filed an amicus brief, and 1851 Center Board Member Christopher Finney is amongst the attorneys challenging the statute.

Tune in for the oral argument live, at 10:00am on Tuesday April 22, or listen to the archived oral argument later, HERE.

Read the 1851 Center’s Amicus Brief HERE.

 


April 22, 2014: WSPD AM 1370: Constitutionality of Ohio Campaign Law Heard By Supreme Court

April 22, 2014: WBNS-10TV: U.S. Supreme Court To Determine Whether Ohio Candidates Can Lie

U.S. Supreme Court Petitioned to Review Ohio PAC Laws

1851 Center asks United States Supreme Court to review Ohio Political Action Committee regulations on behalf of Geauga County blogger’s First Amendment rights

blogger-150x150Columbus, OH – The 1851 Center for Constitutional Law, in cooperation with the Washington D.C.-based Center for Competitive Politics, late yesterday petitioned the United States Supreme Court to weigh in on the nation’s strictest Political Action Committee regulations.

The legal action is filed on behalf of Edmund Corsi, a Cleveland-area blogger who faces prosecution after blogging about state and local political issues, authoring a pamphlet critical of local politicians, and hosting an informal political discussion group. The state contends that Ohio’s PAC laws required Mr. Corsi and others, known as “Geauga Constitutional Council,” to first register with the state and hire a treasurer, and then disclose his home address on his pamphlet and blog, and that by failing to do so, Corsi is subject to criminal penalties and civil fines. Mr. Corsi was referred for prosecution by one of the politicians he criticized – – Geauga County Republican Party chairman Edward Ryder.

The United States Supreme Court has repeatedly confirmed that political speech, even when through group association, in pamphlets or on the internet, is afforded the greatest constitutional protection.

The Court has already once struck down Ohio’s Political Action Committee regulation, in McIntyre v. Ohio Elections Commission in 1995. There, the Court chastised the Ohio Supreme Court and the OEC for upholding the regulations after state officials attempted to prosecute a senior citizen for failing to include a “disclaimer” on her homemade flyer advocating against a local tax increase.

Nevertheless, the Ohio Elections Commission maintains that the re-written regulations still require groups of two or more Ohioans who communicate political thoughts to first register as a Political Action Committee, and thereby submit to reporting, disclaimer, and disclosure requirements. Ohio Courts applied no scrutiny to the OEC, and the Ohio Supreme Court voted 4-3 to sidestep the issue.

This case presents the first opportunity for a federal court to analyze application of the re-written PAC regulations, as well as the first opportunity to consider the effect of the Court’s landmark Citizens United decision on Ohio’s campaign finance regulations.

The Petition for Certiorari presents the following legal questions to the Court:

  1. May the major purpose test for political committee status, established by this Court in Buckley v. Valeo and FEC v. Mass. Citizens for Life, be satisfied without finding that regulated activity comprises the majority of an organization’s activity or expenditures?
  1. May a state meet its burden of demonstrating an organization’s major purpose without determining the portion of its expenditures directed toward political communications?

In addressing these issues, the Petition explains:

  • The costs of complying with the PAC regulations, which includes reporting and disclaimer requirements, administrative burdens, the hiring of a treasurer, and the loss of privacy and anonymity of those who speak out by effectively requiring the disclose of the author’s name and home address on government filing, has the effect of silencing protected speech.
  • The Ohio Elections Commission members improperly guess at the “primary or major purpose” of the group, without considering whether they have spent money on politics, how much money, or other non-campaign-related activities.
  • In involuntarily committing groups of citizens not primarily engaged in elections as PACs, the OEC improperly overanalyzes isolated Facebook and blogs posts and informal “mission statements.”

“Ohio’s PAC regulations have long been considered the most oppressive in the nation, and the Ohio Elections Commission’s application of those regulations has rightfully been the source of national criticism” said Maurice Thompson, Executive Director of the 1851 Center. “Meanwhile, Ohio courts, including our highest court, continue to make high-profile mistakes and oversights on basic First Amendment doctrine, requiring Ohioans to look to federal courts to protect their rights. The First Amendment does not allow politically-appointed OEC bureaucrats and political opponents to use PAC regulations to silence the speech of those who criticize government, using the loss of privacy and expensive reporting requirements of PAC regulations as leverage to intimidate and threaten those expressing differing views, as has been done here.”

Thompson added, “While many Americans fret over government permitting speech by ‘super-PACs,’ they should be more concerned about shocking amount of everyday grass-roots political speech that Ohio is forcing into PAC status – from lawn signs to Facebook pages – and thus essentially prohibiting, at the very same time.”

The case is particularly significant for opponents of local tax levies and “tea party” groups, many of whom are likely to be characterized as Political Action Committees, if the Ohio Election Commission’s ruling is not eventually overturned.

 


Read The Geauga Constitutional Council’s Petition for Certiorari here.


September 10, 2013: The Plain Dealer: Edmund Corsi’s political blog and activism that triggered Ohio election complaint now sits before U.S. Supreme Court

September 6, 2013: Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime

July 11, 2013: Forbes: In Today’s America, Consult Your Attorney Before Speaking Freely