False Statements

A federal court recently ruled that a defamation suit filed by former Ohio Rep. Steven Driehaus against the Susan B. Anthony List can move to trial.

Former Rep. Driehaus sued SBA List alleging that billboards they provided during campaign season claiming that he voted in favor of taxpayer-funded abortions constituted defamation and led to a “loss of livelihood.”  Representative Driehaus considers himself pro-life, but voted in favor of the federal health care overhaul which, according to SBA List, did not include provisions explicitly prohibiting taxpayer-funded abortions.  SBA List’s claim against Driehaus stems from a study by the US Conference of Catholic Bishops, which also took the stance that the bill did not provide adequate measures to prevent certain insurance pools with access to federal funds from paying for abortion services.  Driehaus claims that current statutes and an executive order fully prevent taxpayer money from going towards abortions, which SBA list disputes.

The complaint made it to the Ohio Elections Commission, which concluded that there was probable cause that SBA List violated Ohio’s draconian false statements law.  For those of you who do not live in Ohio, it may seem odd that a state panel exists for determining the validity of campaign ads.  In some regards, the panel is similar to FactCheck.org.  The panel, however, has the ability to threaten citizens with fines and criminal charges if they don’t toe the government line on their version of the “truth.”Although he ultimately dropped the complaint, Driehaus then filed a defamation suit.Emily Buchanan, the executive director of SBA list, made this statement to Fox News:

National Review Online has a great piece examining the pernicious impact of Ohio’s false statements law on political speech in the Buckeye state:

Ohio’s law, which prohibits anyone from making “a false statement concerning the voting record of a candidate or public official,” applies to all non-presidential elections, even if they are for federal office. Sixty to 80 cases are brought to the Ohio Election Commission’s attention every year, estimates Philip Richter, its executive director. About ten to 15 of those ultimately receive a hearing from the full commission. (More pass the preliminary-hearing phase, but sometimes the parties reach agreement and the complaint is dropped before the full hearing.) If the OEC decides that a statement is false, there are three possible outcomes: The person making the statement can be prosecuted by Ohio (very rarely applied), the person can receive a public reprimand letter, or the commission can announce its finding of falsity.

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For those in Ohio who have grappled with the law for years, there is concern about how often the law already stifles speech. “The mere existence of the law allows people to make an allegation and then chill speech right before an election, which is exactly what Driehaus was able to do,” comments Maurice Thompson, executive director of the Ohio-based 1851 Center for Constitutional Law.

Chris Finney, an Ohio lawyer who has represented multiple clients in cases involving the Commission, is frank about his frustrations with the law.

“Ninety-eight percent of the stuff that goes on at the Ohio Elections Commission has nothing to do with the truth or falsity of the statement in question,” he says. “It has to do with trying to embarrass your opponent as Election Day approaches. You get a headline that says this person is a liar. You may get a ruling in time that you can publish printed materials that say the OEC found that my opponent lied.  And that’s what it’s all about.”

CCP has tackled this issue many times.

A controversy over political billboards in Ohio showcases a crystal clear example of how “reforming” politics by regulating political speech is a farce.

Yesterday, the Ohio Elections Commission agreed to allow a complaint by Rep. Steve Driehaus, a Democrat, against the Susan B. Anthony List, a pro-life women’s group, to move forward.

A three-member panel of the Commission found probable cause that SBA List violated Ohio’s false statements law by falsely claiming in an ad that Driehaus “voted for taxpayer-funded abortion,” as the Weekly Standard reported. The vote was 2-to-1; a Republican member voted against advancing the complaint while a Democratic member and an independent member voted to throw a mid-October political bomb into the race.

Yesterday the Wisconsin Supreme Court rejected demands by the Wisconsin Judicial Commission that Supreme Court Justice Michael Gableman be punished for political speech he made during his campaign in 2009.

The case was an important one, testing the proposition that the government cannot be in the business of determining the truth or falsity of statements made by candidates during campaigns. That is supposed the prerogative of the voters, not government.

CCP filed a brief in the case, Wisconsin Judicial Commission v. Michael Gableman, arguing that it was impermissible for the government to punish a political candidate for statements made during the campaign. As CCP’s press release noted at the time,

Opponents of Justice Gableman are seeking to have the state punish him for speech he engaged in during his campaign for the Supreme Court.

“This action against Justice Gableman is a punishment for political speech, which the First Amendment does not permit,” said CCP Vice President Stephen M. Hoersting. “The Court’s decision on this matter will set a precedent for whether the government can determine which political speech is true and which is false, and punish those who fail to adhere to government-approved truth in their campaigns.

Alan Grayson, a Florida Congressman known for sharp commentary, has asked Attorney General Eric Holder to prosecute a web site that is critical of him.

Grayson, a freshman Democrat from Florida’s eighth congressional district, has gained some notoriety in the last year by a series of colorful comments:  he referred to radio talk host Rush Limbaugh as “a has-been hypocrite loser” who “was more lucid when he was a drug addict;” urged Dick Cheney to “Shut the F___ Up;” called one Republican a “whore,” and said that Republicans “want you to die quickly.”

Republican activist Angie Langley has started a PAC called the “My Congressman is Nuts Committee,” which set up a website to chronicle Rep. Grayson’s colorful statements and activities, ”Mycongressmanisnuts.com.”  The site also allows you to make contributions to the PAC, which it spells out will be used to try to defeat Rep. Grayson next fall. 

Now Rep. Grayson has sent a letter to Attorney General Eric Holder, asking Holder to prosecute Langley and the My Congressman is Nuts Committee.  Grayson argues that the name is false since it implies that Langley lives in Grayson’s district (she does not), and the PAC has misrepresented itself in its FEC filings.  Grayson has also filed a complaint with the FEC. 

Mr. Grayson’s letter to the Attorney General includes some (unwitting) humor, as where he writes, “Ms. Langley has chosen a name for her committee that it utterly tasteless and juvenile.”  But there is a very serious issue here, too, and it’s not any alleged violation of campaign finance laws.  No allegation is made that the My Congressman is Nuts PAC is “corrupting” Congressman Grayson or anyone else, or poses a danger of corruption.  And as the PAC has raised all of $3725 as of December 19 (despite a “money bomb” planned for December 16) we doubt that Mr. Grayson is even concerned about the amounts raised.  Rather, it seems apparent that Representative Grayson simply want to silence a political opponent that is showing his many colorful comments and actions in a bad light. 

Regulars to this site know that this is nothing new – indeed, it is probably the main use made of campaign finance laws, and arguably the intended purpose of campaign finance laws.  But it is a reminder, once again, of the danger these laws pose to our speech rights – of the fundamental way in which they are contrary to the First Amendment. 

The Center for Competitive Politics filed a friend-of-the-court brief in a case involving court-imposed punishment of political speech following a vote over where to place a cell phone tower in Wolfeboro.

“Fining a company millions of dollars for engaging in the most basic level of political speech is outrageous and threatens the First Amendment rights of all New Hampshire citizens,” said Stephen Hoersting, the Vice President of the Center for Competitive Politics and the brief’s author. “Speech by a company addressing voters on an issue is clearly protected by the First Amendment. This was not an advertisement for cell phones; it was an appeal to the citizen-legislators of Wolfeboro.”

The case, Green Mountain Realty Corp v. The Fifth Estate Tower LLC (GMR v. Fifth Estate), involved competing proposals to build a cell phone tower, and the matter was put to a vote after competing educational campaigns by the two companies: mailings, newspaper and radio ads, flyers and other advocacy efforts. Voters rejected GMR’s proposal on election day (after previously rejecting Fifth Estate’s proposal), and GMR sued, alleging that Fifth Estate’s advocacy was not protected political speech but false commercial speech subject to the state’s Consumer Protection Act.

A successful candidate in Florida for a county judgeship has been fined $25,000 by the state Judicial Qualifications Commission. Her offense? Apparently trying to insinuate that her opponent’s campaign contributors expected to get something in return for their support.

The Orlando Sentinel reports:

Brevard County judge has agreed to a public reprimand and a $25,000 fine for “improper conduct” during her successful campaign last year to the bench, officials announced today.

A panel that investigates judges said Michelle Baker’s campaign mailer violated judicial cannons of conduct that require “dignity appropriate to judicial office.”

…At issue is a campaign mailer that said Hotusing’s campaign donors largely consisted of criminal defense attorneys and it asked voters: “What are they trying to buy?”

The pending ruling by the U.S. Supreme Court in Citizens United is expected to free up businesses, unions, and nonprofit advocacy corporations to voice their opinions with minimal restraint in elections. For those of us who believe strongly in the First Amendment and the right of all citizens to speak either individually or collectively, the anticipated striking down of the 1990 Austin v. Michigan Chamber of Commerce and a good chunk of McCain-Feingold will be a welcome development.

But from the Granite State comes a tale that demonstrates just how imperiled political speech will continue to be even if/when Austin meets its well-deserved demise. According to at least one judge in New Hampshire, speech by business entities can be restrained by such things as consumer protection laws and other regulations on commercial speech, even when the speech is plainly political in nature.