Is lying part of free speech? Should there be jail time for those who lie during a political campaign? And who gets to decide what’s true or not? Those are some of the issues an Ohio case has raised before the US Supreme Court today.
It’s a case that has united strange political bedfellows: the Obama administration, the Republican National Committee, the American Civil Liberties Union and the anti-abortion group Susan B. Anthony List. Each argues that the Ohio law is unconstitutional because lying is a 1st Amendment right.
Attorney Maurice Thompson, from the Columbus-based 1851 Center for Constitutional Law, has filed a brief in the Susan B. Anthony List v. Driehaus case.
He says political candidates should not be forced to defend their words before the Ohio Elections Commission.
"Our view, based on our experience litigating these types of cases, is that a government Commission cannot be trusted to accurately distinguish true political speech from false speech," said Thompson. "Further, citizens need breathing space to criticize public officials, without concern that those officials will turn around and sue them for cavalier statements."
Current Ohio law imposes jail time or a fine for the first offense if a candidate is deemed by the commission to have lied.
The case before the Supreme Court stems from the 2010 election when an anti-abortion group - Susan B. Anthony List - sought to place a billboard targeting then-Congressman Steve Driehaus (D-Cincinnati) for his vote on the Affordable Care Act.
The ad said, "Shame on Steve Driehaus! Driehaus voted for taxpayer-funded abortion."
Driehaus, who was pro-life, said he voted for the health care bill only after President Obama agreed the health care exchanges would not use tax dollars for abortion.
The Ohio Elections Commission received a complaint from Driehaus and found after investigating found probable cause of a violation.
While Driehaus lost reelection, the Susan B. Anthony List has challenged Ohio's law arguing that it limits First Amendment free speech rights.
Thompson says it’s not just about free speech, but also the process of determining who lied.
"A common question asked regarding this case is whether the 1851 Center and others are defending a 'right to lie,'" said Thompson. "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."
The elections commission was founded in 1974 and is made up of three Democrats, three Republicans and one Independent.
Phillip Richter, executive director of the commission, says 20 to 90 complaints about candidates or campaigns are received every year but only five incidents in 17 years have been referred to the county prosecutor.
A decision in the case is expected by June.