There are rare occasions in which an attorney general finds that he must, as an officer of the Court and representative of the public, acknowledge when the government’s side might be wrong, and especially when a statute might be unconstitutional. See, e.g., Seth Waxman, Defending Congress, 79 N.C. L. Rev. 1073 (2001). In such cases, the AG may follow one of three courses of action: he may refuse to defend a statute, 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); he may defend a statute as part of his client representation, while candidly acknowledging the statute’s constitutional problems, see Defending Congress, 79 N.C. L. Rev. at 1081-82; or he may, as the U.S. Attorney General and Solicitor General sometimes have done, proceed on two tracks, defending the client’s position in one brief and separately filing a brief that acknowledges constitutional problems. The U.S. Attorney General and Solicitor General took this third course in Buckley v. Valeo,424 U.S. 1 (1976), the landmark campaign finance case.
Such a case has recently arisen in Ohio. Ohio’s Attorney General, Mike DeWine, represented pro bono by CCP Chairman Brad Smith as Special Counsel, has chosen this third course and filed a friend of the court brief in COAST v. Ohio Elections Commission, pending in the U.S. District Court for the Southern District of Ohio, suggesting that Ohio’s “false statements” law is unconstitutional.
The Attorney General notes the impact of the statute:
Under Ohio’s 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. 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 determine whether there is probable cause to refer the matter to the full commission for a further hearing.” Prior to 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. 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.
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, which can result in imprisonment for up to six months, or a fine of up to $5000.00.
Attorney General DeWine continues:
[B]y its express terms the law applies to an individual blogger, to a person posting a comment on Facebook or other social media, or to a homemade sign or pamphlet made by a single individual….
[A]n Ohio citizen who chooses to exercise his or her civic responsibilities by speaking out on the 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…
The idea that Ohio’s citizens must hire an attorney or even engage in extensive investigation before communication on Facebook or Twitter, however, undercuts the most basic norms of political participation and free speech…
The Attorney General’s key point is that the “false statements” law does far less to prevent false statements than it does to chill protected opinion, harass speakers who are ultimately deemed not to have made false statements, and allow private parties to gain unfair advantage in elections by obtaining a decree-not subject to judicial review before the election-that his opponent’s speech is “false.” Candidates routinely then feature such “findings” in their campaign ads. When eventually the probable cause determination of the Commission is investigated and no actual falsity found, it is too late for the candidate who has been harmed.
The brief concludes:
“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. Ohio’s generalized prohibitions on “false statements” made in the course of a political campaign burden core, truthful speech protected by the First Amendment and by Ohio’s broader constitutional protections of speech.
The Commission’s own data and recent case law suggests that its powerful 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 Ohio’s false statements laws – some obviously more justified than others – the Attorney General submits this filing as a friend of the court and the legal process, and suggests that … Ohio’s machinery for policing the substance of political speech will need to be recalibrated to remove the threat of inappropriate governmental burdens on Ohioans who speak their minds at election time.
It’s rare that an elected officeholder takes a stand on a political issue that can so easily be demogogued (who supports allowing candidates to “lie” in campaigns). Hats off to Attorney General DeWine for taking a stand on a statute that is blatantly at odds with the First Amendment.