Ohio Attorney General Mike DeWine Amicus Brief SBA List COAST v Driehaus

8/12/2019 Ohio Attorney General Mike DeWine Amicus Brief SBA List COAST v Driehaus

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No. 13-193In The Supreme Court of the United States

SUSAN B.ANTHONY LIST,andCOALITION OPPOSED TOADDITIONAL SPENDING AND TAXES,

Petitioners,v.

STEVEN DRIEHAUS,KIMBERLYALLISON,DEGEE

WILHELM,HELEN BALCOLM,TERRANCE CONROY,LYNNGRIMSHAW,JAYME SMOOT,WILLIAMVASIL,PHILIPRICHTER,OHIO ELECTIONS COMMISSION,andJON

HUSTED,

Respondents.

On Writ of Certiorari to the United States Court ofAppeals for the Sixth Circuit

BRIEF OF MICUS CURI EOHIO ATTORNEYGENERAL MICHAEL DEWINE IN SUPPORT OFNEITHER PARTY

ERIK S.JAFFE

(Counsel of Record)

ERIK S.JAFFE,P.C.

5101 34thStreet, N.W.

Washington, DC 20008

(202) 237-8165

[email protected]

BRADLEYA.SMITH

WESTVIRGINIA UNIVERSITY

COLLEGE OF LAW

101LAW SCHOOL DRIVE

P.O.BOX 6130

MORGANTOWN,WV 26506

Counsel for Amicus Curiae


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TABLE OF CONTENTSTable of Contents .......................................................... iTable of Authorities ..................................................... iiInterest ofAmicus Curiae .......................................... 1Summary of Argument ................................................ 4

Argument ..................................................................... 7IN PRACTICE, THE OHIO FALSE-

STATEMENTS STATUTE MAY CHILLAND PENALIZE SPEECH AT CRITICALTIMES IMMEDIATELY BEFOREELECTIONS. .......................................................... 7

A. The Workings of Ohios False-Statements Law. ............................................... 8

B. Ohios Statutory Scheme May Have aChilling Effect on Protected Speech. .............. 11

C. The Statutory Scheme Has FewSafeguards To Protect First AmendmentRights. ............................................................. 17

D. The Statutory Scheme Pulls Within ItsAmbit Much Protected Speech. ...................... 18

Conclusion .................................................................. 22


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TABLE OF AUTHORITIESCases

Bell v. Southwell, 376 F.2d 659 (5th Cir.1962) ....................................................................... 14

Briggs v. Ohio Elections Commission,61 F.3d 487 (6th Cir. 1995) ...................................... 2

Buckley v. Valeo,424 U.S. 1 (1976) ............................ 3

Committee to Elect Straus Prosecutor v.Ohio Elections Commission, No. 07AP-12, 2007 Ohio App. LEXIS 4797 (OhioCt. App. 2007) ........................................................ 19

Corsi v. Ohio Elections Commn, 981N.E.2d 919 (Ohio App. 2012), appealnot allowed 134 Ohio St.3d 1485, cert.den. 134 S. Ct. 163 (2013) ...................................... 22

Flannery v. Ohio Elections Commission,

804 N.E.2d 1032 (Ohio Ct. App. 2004) .................. 19In re Election of November 6, 1990 for the

Office of Attorney General, 569 N.E.2d447 (Ohio 1991) ...................................................... 14

Landis v. Scarmack, Ohio ElectionsCommission, Case Summary Sheet2012E-023 (2012), available athttp://elc.ohio.gov/casesummarysheets/CaseSummary.stm (2012 GeneralComplaints, p. 24) ................................................. 16

Merrill v. Ohio Dept of Natural

Resources, 955 N.E.2d 935 (Ohio 2011) .................. 1


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Metro Broadcasting v. FCC, 497 U.S. 547(1990) ........................................................................ 3

New York Times v. Sullivan, 376 U.S. 254(1964) ...................................................................... 17

Northeast Ohio Coalition for the

Homeless v. Blackwell, 467 F.3d 999(6th Cir. 2006) .......................................................... 2

Pestrak v. Ohio Elections Commission,

670 F. Supp. 1368 (S.D. Ohio 1987)

revd in part, 926 F.2d 573 (6th

Cir.1991) ................................................................. 12, 14

Pestrak v. Ohio Elections Commission,926 F.2d 573 (6th Cir. 1991) .......................... 2, 7, 17

Service Employees International Union

District 1199 v. Ohio Elections

Commission, 822 N.E.2d 424 (Ohio Ct.App. 2004) ........................................................ 18, 19

State of Washington v. Vote No!

Committee, 957 P.2d 691 (Wash. 1998) ................ 12Steve Buehrer for Congress v. Ohio

Elections Commission, No. 07CVF12-17565 (Ohio C.P., Nov. 17, 2009) ........................... 20

United States v. Alvarez, 132 S. Ct. 2537(2012) ................................................................ 2, 4, 7

United States v. Stevens, 559 U.S. 460(2010) ........................................................................ 8


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StatutesOHIO REV.CODE 109.02 ............................................ 1

OHIO REV.CODE 109.12 ............................................ 1

OHIO REV.CODE 109.13 ............................................ 1

OHIO REV.CODE 109.14 ...................................... 1, 10

OHIO REV.CODE 309.08 .......................................... 10

OHIO REV.CODE 3517.21(B) ..................... 4, 8, 17, 20

OHIO REV.CODE 3517.21(B)(10) ................... 2, 4, 7, 8OHIO REV.CODE 3517.22(B) ................................... 16

OHIO REV.CODE 3517.22(B)(2) ..................... 2, 4, 7, 8

OHIO REV.CODE 3517.152 ........................................ 8

OHIO REV.CODE 3517.152(H)(2) ............................. 10

OHIO REV.CODE 3517.153 .................................... 4, 8

OHIO REV.CODE 3517.153(B) ................................. 10

OHIO REV.CODE 3517.154 ...................................... 20

OHIO REV.CODE 3517.154(A) ................................... 8

OHIO REV.CODE 3517.155(A)(1) ............................. 10

OHIO REV.CODE 3517.156 ...................................... 17

OHIO REV.CODE 3517.156(B)(1) ............................... 8

OHIO REV.CODE 3517.156(C) ................................. 10

OHIO REV.CODE 3517.992(V) ................................. 10


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Other AuthoritiesDeWine BriefAmicus Curiaeat 13, Coast

Candidates PAC v. Ohio Elections

Commission, 2012 WL 4322517 (S.D.Ohio, Sep. 20, 2012) (NO. 1:11CV775),Doc. No. 18 ....................................................... 16, 20

Robert Higgs, For Ohio Candidates,Truth Can Often be Pretty Tricky,Cleveland Plain Dealer, 2010 WLNR21967428 (Nov. 1, 2010) ........................................ 13

Steven F. Huefner, Recourse for ElectionWorker Misconduct, inTHE E-BOOK ONELECTION LAW (Edward Foley, et al.,eds. 2004), available athttp://moritzlaw.osu.edu/electionlaw/ebook/part5/procedures_recount02.html#_ednref6 .................................................................... 14

Margaret H. Lemos, The Solicitor GeneralAs Mediator Between Court And

Agency, 2009 MICH. ST. L. REV. 185(2009) ........................................................................ 2

William P. Marshall, False CampaignSpeech and the First Amendment,

153 U.PA.L.REV. 285 (2004) ................................ 15

Speech Police, COLUMBUS DISPATCH,2012 WLNR 5833464 (Mar. 19, 2012) ................... 15

Seth Waxman, Defending Congress,79 N.C.L.REV. 1073 (2001) ................................. 2, 3


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RegulationsOHIOADMIN.CODE 121.22(C) ................................. 12

OHIOADMIN.CODE 121.22(F) ................................. 12

OHIOADMIN.CODE 3517-1-05(A)(1) ......................... 9

OHIOADMIN.CODE 3517-1-05(C) ............................ 12

OHIOADMIN.CODE 3517-1-10(B) .............................. 9

OHIOADMIN.CODE 3517-1-10(D)(1) ......................... 9

Constitutional ProvisionsOHIO CONST., Art. III, Sec. 1 ....................................... 1


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INTEREST OF MICUS CURI E 1The Attorney General makes this filing in fulfill-

ment of his duties as Ohios chief law officer, as an of-ficer of the Court, and as an independently electedstate official. His position as amicus here is inde-pendent of his representation of the Ohio ElectionsCommission Defendants. He continues zealously torepresent those State Defendants in a separate ca-pacity, acting through experienced lawyers in theConstitutional Offices section of the Attorney Gen-

erals office.2

As set forth below, the Attorney Gen-eral does not express the concerns raised in this brieflightly, but has concluded that this Court may benefitin its deliberations from further discussion of the ac-tual workings and effect of the Ohio false statementsstatute in practice.

The independence of the Attorney General underthe Ohio Constitution is designed to allow him tospeak for the interests of the State as a whole, andfor its citizens. See OHIO CONST., Art. III, Sec. 1;

OHIO REV. CODE 109.02, 109.12-14; see also, e.g.,Merrill v. Ohio Dept of Natural Resources, 955N.E.2d 935, 944-45 (Ohio 2011) (explaining AttorneyGenerals independent power to determine the Statesview, apart from the position of a State agency);

1 No counsel for a party authored this brief in whole or inpart, nor did any person or entity, other than amicus or hiscounsel, make a monetary contribution intended to fund thepreparation or submission of this brief. This brief is submittedpursuant to the consent of the parties, on file with this Court.

2 The Attorney General has screened counsel on this brieffrom contact with those attorneys, and has arranged pro bonooutside counsel for the preparation and filing of this brief.


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Northeast Ohio Coalition for the Homeless v. Black-well, 467 F.3d 999, 1008-09 (6th Cir. 2006) (same;Ohios Attorney General is both the States chief le-gal officer and a representative of the people and thepublic interest, as well as a representative of an in-dividual officer-client).

Ohios generalized false-statement law (OHIO REV.CODE 3517.21(B)(10) and 3517.22(B)(2)) has previ-ously been upheld against constitutional challenge inthe Sixth Circuit. Pestrak v. Ohio Elections Commis-

sion, 926 F.2d 573 (6th Cir. 1991); Briggs v. OhioElections Commission, 61 F.3d 487 (6th Cir. 1995).However, those cases were decided prior to thisCourts recent decision in United States v. Alvarez,132 S. Ct. 2537 (2012), and the Attorney General hasserious concerns about the constitutionality of thegeneralized false statements provisions of the OhioRev. Code concerns that should warrant judicial re-view in an appropriate case. The Attorney Generalbelieves that for this Court to determine whether thisis such a case, it must have a solid understanding ofthe Ohio statute and how it operates in practice.

An Attorney General has a special duty, as an of-ficer of the Court and representative of the public, toacknowledge when the governments side might bewrong. See, e.g.,Seth Waxman, Defending Congress,79 N.C.L.REV. 1073 (2001); Margaret H. Lemos, TheSolicitor General As Mediator Between Court And

Agency, 2009 MICH. ST. L. REV. 185 (2009). To besure, such an action is reserved for rare cases. Asformer U.S. Solicitor General Waxman put it, whenan Act of Congress has been challenged, the SolicitorGeneral ordinarily puts a heavy thumb on the scale


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in favor of defending the statute. Defending Con-gress, 79 N.C. L. REV. at 1078. Yet, the duty to de-fend is not limitless and does not preclude acknowl-edgment of constitutional concerns.

He may defend a statute as part of his client rep-resentation, while candidly acknowledging the stat-utes constitutional problems. See Defending Con-gress, 79 N.C. L. Rev. at 1081-82. He may, as theU.S. Attorney General and Solicitor General some-times have done, proceed on two tracks, defending

the clients position in one brief and separately filinga brief that acknowledges constitutional problems.

The U.S. Attorney General and Solicitor Generaltook the latter course in Buckley v. Valeo,424 U.S. 1(1976), the landmark First Amendment case, and theU.S. Solicitor General took the same action in MetroBroadcasting v. FCC, 497 U.S. 547 (1990), a case con-cerning FCC preferences for minority-owned broad-cast stations. In Metro Broadcasting, the SolicitorGeneral fully advocated for a laws unconstitutionali-

ty. In Buckley, Attorney General Edward Levi andSolicitor General Robert Bork noted the laws prob-lems, without advocating a specific conclusion (whileGeneral Levis Justice Department fully defended thelaw in a separate brief).

In this case the Attorney General has determinedthat the Buckley model is appropriate. As notedabove, the Attorney General continues separately tovigorously represent the Ohio Elections Commissionand related respondents in this case. He files this

separate amicus brief because of the critical im-portance of free speech to our democratic system, andbecause of the potentially chilling effect of Ohio law


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on civic participation by ordinary citizens. The law atissue here does not merely apply to candidates whochoose to run for office, or to political committees whoform to advocate an issue. It can reach any personwho speaks her mind, and recent history suggeststhat the law polices not just false speech, butspeech that indisputably is protected under the First

Amendment. The Attorney General has concludedthat his solemn duty in these circumstances requireshim to speak out through the filing of this amicusbrief.

SUMMARY OF ARGUMENTOhios generalized false-statements provisions,

OHIO REV.CODE 3517.153 (complaint); 3517.21(B)& (B)(10) (any false statement concerning acandidate); 3517.22(B)(2) (any false statementconcerning a ballot proposition or issue), raise anumber of potential constitutional issues that,particularly in light of United States v. Alvarez, 132

S. Ct. 2537 (2012), merit substantive judicial reviewin the appropriate case.

Under Ohios generalized false-statementprohibitions, a complaint may be filed by anyperson, including but not limited to politicalopponents, who must merely attest that one of thestatements was false and made with knowledge orreckless disregard of its falsity. The allegedly falsespeech then will be reviewed by a stateadministrative body that has been selected with

specific reference to the political affiliations of itsmembers. This process begins with a probable-cause hearing before a panel selected by the Chair of


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the Commission. Complaints filed within 90 daysbefore an election must be heard within three days.At these expedited hearings, the Commission is notrequired to allow any evidence, testimony, orargument to be presented, and the hearing may beconducted without the respondent present or evennotified. Even if the respondent receives noticebefore this hearing, is able to appear, and is allowedto present evidence or argument, the respondent mayhave no opportunity prior to the hearing to gaindiscovery or to learn the basis for the complaint,which may be conclusory in nature.

If the panel finds probable cause a very lowhurdle the Commission may issues subpoenascompelling the attendance of witnesses and theproduction of papers, books, accounts, and reports,and may seek enforcement through contemptproceedings in the Franklin County Court ofCommon Pleas. Eventually, if the full Commissiondetermines by clear and convincing evidence thatthe respondent has violated the false-statements law,the Commission may refer the matter to theappropriate county prosecutor for prosecution.

Probable-cause hearings before the Commissionare open public hearings and the media is specificallyrequired to be notified of such hearings. As apractical matter, such hearings can be manipulatedby complainants so that the costs they impose on apolitical opponent form part of the complainantscampaign strategy. There is reason to believe thatsome complainants do precisely that. The impact of astate agency declaring that it has found probablecause that an individual has made a false statement


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(often described in the press as lied) in theimmediate run up to an election can be profound. Asa practical matter, cases rarely go to the fullCommission prior to the election, and pre-election

judicial review is extremely uncommon. As a result,candidates who find their campaigns disrupted in thefinal days, even for what eventually prove to be truestatements, have no effective relief the damage isdone. The probable-cause finding, which does notrequire even a preponderance of the evidence, isperceived by a substantial part of the electorate asthe definitive pronouncement of the State of Ohio asto a candidates or other speakers truthfulness. It isnot surprising, then, that a review of theCommissions files shows that a great many chargesthat result in a finding of probable cause aredismissed by the complainant after the election. It isnot overly cynical to believe that in many cases, thisis the complainants intended strategy from thebeginning.

Numerous speakers who have not made a falsestatement even under the modest burden of prooffor probable cause are likewise forced to devotetime, resources, and energy defending themselvesbefore the Elections Commission, typically in the latestages of a campaign. Because the Commission hasno system for weeding out frivolous complaints,candidates on the receiving end of a false-statementcomplaint must endure these burdens no matter howweak the complaint to fail to defend would risk apublic and onerous probable-cause finding. The only

alternative to risking being subjected to theseprocedures is to self-censor or remain silent.


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Thus, in practice, Ohios false statements lawallows the States legal machinery to be usedextensively by private actors to gain politicaladvantage in circumstances where malicious falsitycannot ultimately be established.

ARGUMENTIN PRACTICE THE OHIO FALSE-STATEMENTSSTATUTE MAY CHILL AND PENALIZE SPEECHAT CRITICAL TIMES IMMEDIATELY BEFOREELECTIONS.

The State of Ohio has erected a legislative schemethat, while purporting to regulate false speecharguably unprotected by the Constitution, seePestrak, 926 F.2d at 577, but see Alvarez, 132 S. Ct.2537, in practice repeatedly scoops within its ambitprotected truthful speech. Ohios law therefore maychill constitutionally protected political speech even ifadequate safeguards are included in the law, and

especially if they are not.A review of the Ohio statutory system sheds light

on the ways in which the generalized falsestatements provisions of OHIO REV. CODE 3517.22(B)(2) & 3517.21(B)(10) may, in fact,intentionally be used by private actors to chillopposing political speech. The practical effect ofthese provisions is to permit a private complainant toengage the States legal and administrative processesin order to gain a campaign advantage without ever

having to prove the falsity of a statement, even to thestandard of a preponderance of the evidence.


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A. The Workings of Ohios False-StatementsLaw.Under Ohios generalized false-statement

prohibitions, anyone who joins in political debate andmakes statements deemed to be intended to influencethe outcome of an election may end up on thereceiving end of a complaint filed with the OhioElections Commission. A complaint may be filed byany person, including but not limited to politicalopponents, who must merely attest that one of the

statements was false and made with knowledge orreckless disregard of its falsity. See OHIO REV.CODE 3517.153 (complaint); 3517.21(B) & (B)(10)(any false statement concerning a candidate);3517.22(B)(2) (any false statement concerning aballot proposition or issue). Unlike an enforcementbrought by state officials, there is not even a promiseor presumption that this power to file a complaintwill be used responsibly. Cf. United States v.Stevens, 559 U.S. 460, 480 (2010).

The speaker will then find his statementsreviewed by a state administrative body that hasbeen selected with specific reference to the politicalaffiliations of its members. See OHIO REV. CODE 3517.152. If the complaint alleges a false statementand is made within 90 days of the general election,then within three days (or seven days if good cause isshown) the Elections Commission will convene apanel to hold a hearing on the complaint todetermine whether there is probable cause to refer

the matter to the full commission for a furtherhearing. OHIO REV. CODE 3517.154(A),3517.156(B)(1).


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While no more than half the members of the panelmay be members of any one political party, themembers of the panel are selected by the Chair of theCommission. The Chair of the Commission, however,is selected on a partisan basis and may be from adifferent political party than the speaker or, indeed,from a political party with a directly opposingcandidate in an imminent election. OHIO ADMIN.CODE 3517-1-05(A)(1)(a) & (c). Further, onceformed, these panels may be reconstituted at thediscretion of the Chair. OHIOADMIN.CODE 3517-1-05(A)(1)(f). While it can be presumed that membersof the panel seek to carry out their responsibilitiesfree from bias and partisanship, experience andcommon sense suggest that the perception of somepotential speakers will be otherwise. Further, itshould be noted that members of the Commission arenot required to have any legal training.

At expedited hearings on complaints filed within90 days prior to a general election the Commission isnot required to allow any evidence, testimony, orargument to be presented, and the hearing may beconducted ex parte, without the respondent present.OHIOADMIN.CODE 3517-1-10(B) and (D)(1). Evenif the respondent receives notice before this hearingand is able to appear, and allowed to presentevidence or argument, the respondent may have noopportunity prior to the hearing to gain discovery orto learn the basis for the complaint, which may beconclusory in nature.

The probable-cause panel may dismiss thecomplaint for want of probable cause, may findprobable cause and refer the complaint to the full


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Commission for a merits hearing, or, if the evidenceis insufficient for the panel to make a determination,may request that an investigatory attorneyinvestigate the complaint and then proceed to a fullCommission hearing. OHIO REV. CODE 3517.156(C).3 The Commission may issuessubpoenas compelling the attendance of witnessesand the production of papers, books, accounts, andreports, and may seek enforcement through contemptproceedings in the Franklin County Court ofCommon Pleas. OHIO REV.CODE 3517.153(B).

If the full Commission determines by clear andconvincing evidence that the respondent has violatedthe false statements law, the Commission may referthe matter to the appropriate county prosecutor forprosecution, OHIO REV. CODE 3517.155(A)(1)(c),which can result in imprisonment for up to sixmonths, or a fine of up to $5000.00. OHIO REV.CODE 3517.992(V).4

3Unlike most Ohio government agencies, the Ohio ElectionsCommission is specifically authorized to retain attorneys andinvestigatory attorneys without approval or supervision of the

Attorney General. OHIO REV.CODE 3517.152 (H)(2)(a).

4The referral passes directly to the appropriate prosecutor.While the Ohio Code provides that the Attorney General shalladvise the prosecuting attorneys of the several counties respect-ing their duties, OHIO REV.CODE 109.14, it is not clear thathe has the authority to order them to prosecute or not to prose-cute any particular violation, or that he has control over theprosecutors legal position prior to an appeal to the SupremeCourt of Ohio. See OHIO REV. CODE 309.08 (providing that

[t]he prosecuting attorney shall prosecute, on behalf of thestate, all complaints, suits, and controversies in which the stateis a party, except for those required to be prosecuted by a specialprosecutor pursuant to section 177.03 of the Revised Code or by


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As outlined below, while only a full Commissionfinding may result in legal penalties, the initialhearing by a Commission panel may be the mostimportant part of the statute in practice. Thishearing is designed to determine whether probablecause exists for further investigation. By definition,it comes before any determination of falsity, or evenlikelihood of falsity, is made, and it can triggersubstantial investigation and discovery obligations.

Finally, it must be emphasized that the statute

applies not only to campaigns or large entities, but toany person. Thus by its express terms the lawapplies to an individual blogger, to a person posting acomment on Facebook or other social media, or to ahomemade sign or pamphlet made by a singleindividual, as well as to billboards, broadcast, andprint advertisements.

B. Ohios Statutory Scheme May Have aChilling Effect on Protected Speech.The petitioners in this case allege that their

speech is and has been chilled by the possibility ofinvestigation and prosecution, and will again bechilled in the future. In order to evaluate this claim,the Court should consider the operation of the Ohiostatutes within the unique realm of elections.

the attorney general pursuant to section 109.83 of the RevisedCode, and further providing that [i]n conjunction with the at-torney general, the prosecuting attorney shall prosecute in thesupreme court cases arising in the prosecuting attorney's county* * *).


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As noted above, a Commission finding of probablecause may trigger substantial legal obligations for arespondent to a complaint. In this case, for example,three officials of petitioner Susan B. Anthony Listwere noticed for depositions, and both the Susan B.

Anthony List and allied organizations were subjectedto extensive document requests. JA 55-58, 67-71.

Beyond the explicit legal burdens that may resultfrom a finding of probable cause, however, theprobable-cause hearings conducted by a panel of the

Ohio Elections Commission may create other chillingeffects on speakers. The hearings are, by law, publichearings. OHIO ADMIN. CODE 3517-1-05(C),121.22(C). The Commission is required to giveadvance notice of the hearing to the press. OHIO

ADMIN.CODE 121.22(F).5 As one federal court hasnoted, [t]he hearings become part of the media hypesurrounding a campaign, and they can bemanipulated by candidates. Pestrak v. OhioElections Commission, 670 F. Supp. 1368, 1376 (S.D.Ohio 1987) revd in part on other grounds, 926 F.2d573 (6th Cir. 1991); see also State of Washington v.Vote No! Committee, 957 P.2d 691, 698-99 (Wash.1998) (finding that Washingtons false-statementslaw was manipulated by candidates to impugn theelectoral process rather than promote truthfulness).For one on the receiving end of a false-statementscomplaint, the impact of a state agency declaring thatit has found probable cause that an individual has

5Compare this procedure to 2 U.S.C. 437g(a)(12), providingfor confidential investigations of complaints in federal campaignfinance cases.


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made a false statement (often described in the pressas lied) in the immediate run-up to an election canbe profound.

A pre-election probable-cause determination hasgreat effect beyond costs in time and money to therespondent. To the challenged speaker, such adetermination itself may be viewed as a sanction bythe State, because it is viewed as such by largesegments of the electorate. Indeed, that result maybe the precise outcome sought by the complainant in

enlisting the States enforcement procedure to hisside in a campaign debate. A candidate who files acomplaint that results in a probable cause findingmay trumpet that in press releases and ads. See,e.g., Robert Higgs, For Ohio Candidates, Truth CanOften be Pretty Tricky, Cleveland Plain Dealer, 2010WLNR 21967428 (Nov. 1, 2010). In short, the starkrealities of the system are such that speakers whofind their statements challenged in the governmentalreview process may have little choice but toparticipate fully in the Commissions assessment ofthe speech at issue. And a finding of probable cause,if issued, will often harm, and is often intended bythe complainant to harm, the speakers campaign,regardless of any eventual final determination by theCommission.

And when a probable-cause finding is made closeto an election, it is rare that the speaker will have theopportunity for vindication at a full Commissionhearing, let alone before a court of law, before theelection in question. This is important because anessential feature of an election is timeliness. Theelection arrives on a date certain, and once that date


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has passed, it is extremely rare for any court to setaside the results of an election. A federal judicialdecision to enjoin the results of an election is adrastic, if not staggering act. Bell v. Southwell, 376F.2d 659, 662 (5th Cir. 1962). State courts, too, areappropriately reluctant to overturn election results.[T]he courts of Ohio are hesitant to set aside anelection result and will do so only in extraordinarycases, wrought with flagrant and determinativeelection irregularities. Steven F. Huefner, Recoursefor Election Worker Misconduct, in THE E-BOOK ONELECTION LAW (Edward Foley, et al., eds. 2004),available athttp://moritzlaw.osu.edu/electionlaw/ebook/part5/procedures_recount02.html#_ednref6; see also In reElection of November 6, 1990 for the Office of

Attorney General, 569 N.E.2d 447, 449-50 (Ohio1991) ([C]ourts should be very reluctant to interferewith the election of public officials by the people,except to enforce rights or mandatory or ministerialduties as the statutes require. The survival of our

system of government requires that proper respect begiven to the will of the people as expressed at theballot box. * * * Accordingly, we have adoptedstringent standards for granting relief in electioncontests.). This stringent standard begets a reality:official actions that cannot be corrected before anelection can rarely, as a practical matter, be remediedafter an election.

It is not unduly cynical to suggest, as did thefederal district court in Pestrak, 670 F. Supp. at

1376, that in at least some Elections Commissionmatters, complainants may time their submissions to


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achieve maximum disruption of their politicalopponents while calculating that an ultimate decisionon the merits will be deferred until after the relevantelection. In Ohio, savvy politicians know to makesuch complaints just before an election, so that thetarget of the complaint suffers bad publicity in thefinal days of the campaign, when it is too late for thecomplaint to be upheld or dismissed. Speech Police,COLUMBUS DISPATCH, 2012 WLNR 5833464 (Mar. 19,2012). Bringing * * * campaign practices actionsagainst a candidate who has purportedlydisseminated false statements is not always aboutcorrecting the record or remedying injury toreputation. It is often also about inflicting politicaldamage. In this respect, the [action] itself can be aweapon of substantial political force. William P.Marshall, False Campaign Speech and the First

Amendment, 153 U.PA.L.REV. 285, 300 (2004).

Even where the Commission does not findprobable cause, the damage is often done. Thespeaker is forced to use time and resourcesresponding to the complaint, typically at the exactmoment that the campaign is peaking and his timeand resources are best used elsewhere. In otherwords, the State has constructed a process thatallows its enforcement mechanisms to be used toextract a cost from those seeking to speak out onelections, right at the most crucial time for thatparticular type of speech. And if the allegations turnout to be unfounded, there is no possibility of timelyremedy.

The timing of complaints at the Commissionsupports the notion that some partisans may seek to


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trigger actions immediately before the election, andthat in such cases the finding of probable cause isitself the result that the complainant seeks. A reviewof Ohio Elections Commission records for 2010 and2011 found that twenty-one complaints were filedalleging false statements under OHIO REV. CODE 3517.22(B). Sixteen appear to have reached aprobable cause panel within one week of the election.DeWine BriefAmicus Curiaeat 13, Coast CandidatesPAC v. Ohio Elections Commission, 2012 WL4322517 (S.D. Ohio, Sep. 20, 2012) (NO. 1:11CV775),Doc. No. 18.

Further evidence of the manipulation of thesystem to penalize speech in the crucial run-up to anelection, rather than to penalize false statements, isthat, typically, no penalty is sought beyond thefinding of a violation. From 2001 through 2011, theElections Commission found a violation of 3517.22(B) in 14 cases, and violations of 3517.21(B) in 97 cases. Id. While the Commissionreserves the authority to refer cases for prosecution,it does so only sporadically. In many cases, theCommission specifically reports that the penalty isthe finding of a violation. See e.g. Landis v.Scarmack, Ohio Elections Commission, CaseSummary Sheet 2012E-023 (2012), available athttp://elc.ohio.gov/casesummarysheets/CaseSummary.stm (2012 General Complaints, p. 24).

The time-sensitive nature of the election and theauthoritative imprimatur given to the Commission asa purportedly expert, impartial state agency make aprobable-cause hearing a serious matter, even beyondthe ramifications of future hearings and


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investigations. Once the State has harmed aspeakers cause by making a finding (whether ofprobable cause or of violation) for which no judicialreview can, as a practical matter, be had before theelection, many speakers feel effectively penalized forspeaking.

C. The Statutory Scheme Has FewSafeguards To Protect First AmendmentRights.

The Pestrak appeals court upheld theconstitutionality of regulating false speech in theforerunner to what is now OHIO REV. CODE 3517.21(B), but also invalidated other provisions.

Among other things, Pestrak noted that clear andconvincing evidence was required before punishmentcould be levied against a speaker in areas trenchingon the first amendment. 926 F.2d at 578 (quotingNew York Times v. Sullivan, 376 U.S. 254, 285-86(1964)). By definition, the probable-cause

determinations of the Commission are not based onclear and convincing evidence. See OHIO REV.CODE 3517.156. Thus, to the extent that a probable-causefinding has the practical effect of penalizing speech,it violates this requirement of Pestrakusing a burdenof proof even lower than a preponderance of theevidence.

Further, the Pestrakcourt noted that [e]ven whenthere is the strongest reason for restraint, as in thepossibility of public disorder, there must be an

immediate opportunity for judicial review. 926 F.2dat 578. Yet if what a complainant seeks is not aprosecution, or even a final agency action, but merely


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the ability to file a complaint, to engage the chillingpower of the state, and perhaps to obtain a probable-cause finding shortly before voters go to the polls, itis clear that no adequate judicial review can be hadbefore the election. This truly is a situation where

justice delayed is justice denied for the innocentspeaker.

D. The Statutory Scheme Pulls Within ItsAmbit Much Protected Speech.

Few respondents contest an adverse Commissionfinding in court because the election will be over, wonor lost, by the time any judicial hearing takes place,and so the remedy is largely meaningless. Even ifthe speaker is ultimately victorious, that speakergets little or nothing for his or her efforts butadditional legal bills. Nevertheless, the fewchallenges that do take place demonstrate that theState administrative apparatus affects a good deal ofspeech that is well within the ambit of

constitutionally protected speech, and that theremedy is rarely, if ever, a timely one.

For example, in Service Employees InternationalUnion District 1199 v. Ohio Elections Commission,822 N.E.2d 424 (Ohio Ct. App. 2004), a union wasvindicated and the OECs findings reversed, but notuntil a full year and a half after the election.Probable cause in the matter was found within twoweeks before the election. A full merits hearing washeld one day before the election, at which the

Commission found a false statement violation by avote of 4-3. Id. at 427-28. The next year the Court ofCommon Pleas affirmed the Commissions finding.


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Id. at 428. The case then went to the Court ofAppeals, which found that [t]he statement at issue[was] ambiguous and susceptible of differentinterpretations, and that even assuming falsity forthe sake of analysis, the record lacks clear andconvincing evidence that SEIU knew that thestatement was false or acted in reckless disregard* * *. Moreover, * * * SEIUs interpretation of thestatement is rational and has a basis in fact. Id. at430, 432. Thus, roughly a year and a half after theelection, the matter was remanded with orders toreverse the Commissions determination against theUnion.

The few other reported cases too frequently tellsimilar stories. See, e.g., Flannery v. Ohio ElectionsCommission, 804 N.E.2d 1032 (Ohio Ct. App. 2004)(reversing OEC finding of violation nearly two yearsafter election; complaint had been brought againstDemocratic candidate for Secretary of State byincumbents campaign manager; Commission foundprobable cause and ultimately violations; trial courtreversed; Court of Appeals ultimately held that,even assuming arguendo that Flannerys statementswere false, the Commission failed to sustain itsburden that the statements were made with actualmalice.); Committee to Elect Straus Prosecutor v.Ohio Elections Commission, No. 07AP-12, 2007 Ohio

App. LEXIS 4797 (Ohio Ct. App. 2007) (affirmingtrial court reversal of two findings of violations wherestatements were not shown to have been made withactual malice; appeals court ruling came two years

and eleven months after the election in which thestatements were made); Steve Buehrer for Congress


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v. Ohio Elections Commission, No. 07CVF12-17565(Ohio C.P., Nov. 17, 2009) (Two years after theelection, Commission false statement findingreversed: There was no evidence before theCommission that the statement was false, or * * *published * * * knowing the same to be false or withreckless disregard of whether it was false or not.).

The public documents from the Ohio ElectionsCommission further show the burden that the falsestatements law places on protected speech. A prior

review of Commission files between 2001 and 2010,revealed that the Commission found violations ofOHIO REV.CODE 3517.21(B) in 90 cases. But theCommission dismissed another forty-eight cases aftera hearing, and 112 were dismissed because thecomplainant withdrew the complaint or failed toprosecute (typically after the election a furtherindication that the goal may often be less an ultimatefinding of a violation than a probable-cause findingbefore the election). Two hundred sixty weredismissed with findings of no probable cause. CoastCandidates PAC v. Ohio Elections Commission,DeWine BriefAmicus Curiae17, n. 5.

In short, numerous speakers who have not made afalse statement even under the modest burden ofproof for probable cause are forced to devote time,resources, and energy defending themselves beforethe Elections Commission, typically in the late stagesof a campaign. And under OHIO REV. CODE 3517.154, the Commission cannot even weed outfrivolous complaints before the probable-causehearing unless the complaint is technically deficient.False-statement complaints almost by definition are


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filed by persons with hostile political motives. Forsuch complainants, the fact that the complaint isdismissed, whether at probable cause or after a fullhearing, may be almost beside the point. Thedamage inflicted is the time and cost to theopposition of having to defend itself in the campaignsfinal days. Vindication in court 18 months or twoyears later is scarcely vindication at all.

To summarize, an Ohio citizen who chooses toexercise his or her civic responsibilities by speaking

out on issues of the day may face the issuance ofgovernment subpoenas, targeting by a government-appointed investigative attorney (even absent afinding of probable cause), and a politically damagingCommission determination labeling her speechfalse just before the election, all with the threat ofcriminal prosecution in the background. Thesefactors may impel the speaker to take on the burdenof responding to the complaint. This is so even if therespondent believes his or her speech is true, and itcomes at the time in the days immediately beforethe election when such response is most distractingand burdensome. Alternatively, the risk of suchconsequences may force the speaker to remain quietor self-censor statements that could be used to triggereven a frivolous complaint.

The impact of this system on speakers cannot betrivial. And while the petitioners in this caserepresent relatively large non-profit organizations,for an individual pamphleteer or blogger, especially,the threat of prosecution can be terrifying. Cf. Corsiv. Ohio Elections Commn, 981 N.E.2d 919 (Ohio App.


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2012), appeal not allowed 134 Ohio St. 3d 1485, cert.den. 134 S. Ct. 163 (2013).

CONCLUSIONThere is ample reason to believe that Ohios false-

statements law allows the States legal machinery tobe used extensively by private actors to gain politicaladvantage in circumstances where malicious falsitycannot ultimately be established. In light of theongoing stream of false-statement claims made under

the most generalized and unspecific of Ohios false-statements laws some obviously more justified thanothers the Attorney General submits this filing as afriend of the Court and the legal process, in the beliefthat this review of the statute in actual operationmay be helpful to the Court in considering thequestions presented in this case.


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Respectfully submitted,

BRADLEYA.SMITHWESTVIRGINIA UNIVERSITYCOLLEGE OF LAW101 Law School DriveP.O. Box 6130Morgantown, WV 26506

ERIK S.JAFFE

(Counsel of Record)ERIK S.JAFFE,P.C.5101 34th Street, N.W.Washington, DC 20008(202) 237-8165

[email protected]

Counsel for Amicus Curiae

Dated: March 3, 2014

Documents

Ohio Attorney General Mike DeWine Amicus Brief SBA List COAST v Driehaus