Op-ed on Ohio "false statement" rules

Mark Weaver's op-ed on Ohio's "false statement" statutes was published in the Cincinnati Enquirer.

Ruling on false speech lets voters decide

Mark R. Weaver teaches election law at the University of Akron and practices elections law as a partner at the Columbus law firm Isaac Wiles.

America arose from a dispute in which colonists loyal to the crown and advocates of independence volleyed truths and falsehoods in a war of words. Leading up to the actual war, the strongest weapon of our Founding Fathers was their political speech.

Speech remains the strongest weapon of political adversaries today – the context has just changed to election campaigns. In a recent Cincinnati case, the U.S. Supreme Court moved toward making that speech more free with a unanimous ruling that could mean the end of an Ohio ban on false campaign statements.

In 1775, Thomas Paine anonymously penned "Common Sense" and ignited a firestorm of dissent against British overreach and overrule. Many loyal to the king clamored to learn who wrote it, so they could press for treason.

But Paine held fast to his belief that, in political speech, "the doctrine, not the man," matters most.

Even today, courts protect purveyors of potentially unpopular political speech from the byproducts of outrage. In 1995, the U.S. Supreme Court ruled that an Ohio woman who circulated fliers opposing a school levy was protected by the Constitution, despite that fact she violated a law requiring her to disclose her identity.

So it's fundamentally American that political speech is best judged on its own assertions. Government intrusion to referee this process is unnecessary and unconstitutional. Some scramble to weigh down political actors with regulations circumscribing who can speak, when, where and how.

With good reason and as they did in two recent Cincinnati cases, the U.S. Supreme Court declines these invitations, even when lawmakers and regulators have been unable to resist.

The cases brought by the conservative groups COAST and the Susan B. Anthony List allege that Ohio's law against false political speech – as judged by the appointed Ohio Elections Commission – chill free speech.

The justices' unanimous ruling in June merely permits the cases to be heard by a lower court. However, they hinted that laws like Ohio's may violate the First Amendment.

If this result comes to pass, the self-anointed defenders of the vague but popular concept of "good government" will thunder and lament this decision as the spark of infernal ruin. They'll predict the reign of deceit, deception and doom in elections.

Yet if courts do eventually strike down Ohio's ban on false campaign statements, they will leave undisturbed the ultimate judge of political speech: voters who take the time to do their homework. A well-informed citizenry can be credited for this nation's rise, and a poorly informed electorate will be blamed for any future demise.

Simply put, all voters have the ability to discern campaign fiction from nonfiction. By conducting basic Internet searches and using existing fact-checking by media and nonprofits, the truth of a candidate's claim can be uncovered.

In court, we trust laypeople on a jury to decide which side is telling the truth. We instruct them to use common sense to determine which witnesses have a motivation to lie, which scenarios are plausible and which advocates are trying too hard to deny the obvious.

Voters can do the same with claims made by politicians and interest groups.

Ballot box decisions matter – a lot. Surely the choice of who should make, judge and execute our laws deserves as much time from us as our avocations.

As Americans, we've searched mightily for the sentinels of our democracy and they, to borrow a phrase, are us. And the fact the Supreme Court is unraveling laws against false campaign statements won't change that.

Weaver on Ohio public records issue

From the Cleveland Plain Dealer

CLEVELAND, Ohio -- Bedford city and municipal court officials have refused to release records -- specifically grand jury subpoenas -- related to a county public corruption investigation.

According to attorneys and citizen advocates, those records, once received by a city official or employee, become public record.

Last week Bedford officials declined to release to The Plain Dealer subpoenas for the appearance of city officials or employees in front of a Cuyahoga County grand jury as well as subpoenas requesting city records.

Officials from Bedford Municipal Court also would not release similar subpoenas.

Bedford City Manager Henry Angelo said the Cuyahoga County Prosecutor's office had advised the city not to release the subpoenas.

Late Monday, the prosecutor's office sent a letter to the city outlining their position – that the subpoenas and the records requested are governed by laws of criminal procedure that allow grand juries to work in secret.

Assistant County Prosecutor Matthew Meyer, who heads the office's public corruption unit, said those records are not subject to public records law. 

However, lawyers who are experts in public records law disagree with that assertion. They say the laws Meyer cites pertain to prosecutors and courts – not municipal officials who receive the subpoenas to produce the records.

Mark Weaver, a Columbus attorney and public records expert, said the city should release the subpoenas. He said Ohio Criminal Rule 6 – which the prosecutor's office mentioned -- deals with grand jury secrecy, does not apply to the public documents at the city.

"It's ridiculous,'' said Weaver, who served as a top deputy to former Ohio Attorney General Betty Montgomery. "Criminal Rule 6 applies to the prosecutor. To say that Criminal Rule 6 stops the recipient of the subpoena from releasing the subpoena as a public record is incorrect. If the city law director's office has copies of the subpoenas, it must release them promptly.''

In a letter to city officials, Meyer references appeals court and Ohio Supreme Court case decisions regarding grand jury related records. The cases, however, focus on requests made to prosecutors and courts – not city officials.

During the massive federal corruption probe that had tentacles across the county, municipalities, school districts and county government officials released similar subpoenas issued by a federal grand jury.

Subpoenas often show what records or information investigators are after. In the federal corruption cases, they indicated certain businesses or public officials federal prosecutors were looking for information about. 

"As far as I know, they are public record once they've been delivered," said attorney Timothy D. Smith, an emeritus professor of Journalism at Kent State University and Ohio public records law expert.  "I'm not aware of any exceptions that would get them off the hook," he said.

Angelo said Monday that the city would comply with public records requests made by The Plain Dealer for documents other than the subpoenas, including information about Law Director Ken Schuman who last month went on medical leave shortly after Municipal Judge Harry Jacob III also took a leave of absence. State agents searched Schuman's home and private law office last week. His attorney James McDonnell declined to comment. Jacob could not be reached for comment.

The prosecutor's office, along with the state Bureau of Criminal Investigation and the Bedford police, are looking into potential corruption in the city and court – some of it related to a massage parlor operating in the city that was raided in September. Prosecutor Timothy J. McGinty said in a recent county meeting that he expected new public corruption charges related to a brothel investigation.

Prosecutors said the parlor was actually a brothel and indicted 71-year-old James Walsh.

Walsh operated the brothel out an office building that housed his now-defunct insurance business, prosecutors said.

He has pleaded not guilty to charges of promoting prostitution and money laundering. He is expected in court tomorrow and has asked a judge to return to him an SUV and other items seized during raids of the business and of his estranged wife's home. Richard Drucker, his attorney, has not returned calls for comment.

According to a filing by prosecutors in Walsh's case, the investigation involves "a conspiracy involving the defendant and others and numerous criminal offenses."

Reporter John Caniglia contributed to this story.

Dole on the scars of 9/11

Originally published in the Newark Advocate on 8/26/11:

Remember those unifying days after Sept. 11, 2001? Those times demanded a rallying cry, and we all urged our future selves to “Never Forget.”

I attended a candlelight vigil that week in a small town similar to Newark or Granville. People of all ages, political and socio-economic backgrounds gathered together in an effort to make sense of what had happened. Taking the candle home that evening, I etched “Never Forget 9/11/01” in the wax.

To this day, I have it on a shelf where I see it every day.

Looking back, however, I find myself asking: “Never Forget” — how could I? 

The continuing impact of the 9/11 attacks is like a tree with barbed wire seemingly growing from its trunk.

It’s not an optical illusion.

In time, a tree growing near the barbed wire will overtake it; the wire will pierce the bark and cut into the tree. But the tree will keep right on living, enveloping the barbed wire. Each passing year means another ring in the trunk and the barbed wire becomes an even more permanent part of the tree.

The barbaric act of terrorism cut deeply into our country’s soul. It hurt, and it changed us. But we’ve kept on living, enveloping the raw emotions of that day. And the sad reality that we lost 2,996 mothers, fathers, sons, daughters, brothers and sisters that day has become an everlasting part of our national psyche.

Dedicated to the “Never Forget” mantra, I forced myself to watch the documentaries and news footage annually those first few years. I have a VHS tape full of live news coverage that I recorded that day. It ends with the emotionally spontaneous singing of “God Bless America” by members of Congress who were hoping to show the world, and any still-would-be terrorists, that our spirit was not broken.

But it turns out I didn’t need to watch those documentaries. I didn’t need to remind myself to “Never Forget.” It’s a sad fact that all the images — all the horror — are etched in my memory like those words carved in the candle.

Armed with a history degree, I strive to look at history with an emotional detachment, but I can’t do that with Sept. 11. That day isn’t remembered — it’s relived. Relived through the same thoughts, concerns and anger I felt watching the event unfold 10 years ago. 

Seeing footage of the second airplane hitting the twin towers causes the same electrical jolt through my brain that it did that day — a stark reminder of just how inconceivable the violent attacks were. I’m still trying to wrap my brain around the how and the why.

Remember the first tower collapsing? Even the news people struggled with the severity of what they were seeing. Watching it through the television set, I saw the collapse in its massive entirety, but the network anchors wrestled with it — “a portion collapsed?” “No?” “The whole thing?” “The entire tower is gone?” It’s as shocking today as it was then. 

Then there’s the footage of people jumping out of the towers. That’s where I have to draw the emotional line, even now.

As a youngster, I remember trying to tackle the premise of “eternity.” I tried to grasp what “forever” meant. I couldn’t do it — this idea that we’re only alive for, say, 100 years, and then we’re dead forever was too deep a notion for a preteen. A terrible feeling would rush over me, and I’d quickly turn my attention to less ponderous subjects.

I get the same feeling in the pit of my stomach now, thinking about the people jumping out of those buildings. How can jumping out of an 80th floor window be the best option? I just can’t comprehend it, and I can’t watch that footage.

The memories still are fresh and still haunting. While I think we, as a nation, needed that rallying cry then, it seems that forgetting is one of the lesser threats we’ve faced since Sept. 11.

There’s an English proverb that says, “Time heals all wounds.” Hundreds of years after that proverb first appeared, and 10 years after Sept. 11, some clarification is needed.

Notice, for instance, it doesn’t say how much time will heal the wounds.

Notice, also, that the proverb doesn’t give an antidote for healing memories.

And what the author clearly forgot to mention is this: Healed or not, like barbed wire running through a tree, the scar always will remain.

Matt Dole is a communications consultant living in Granville, OH.