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.