- Associated Press - Tuesday, March 4, 2014

WASHINGTON (AP) - Ohio Attorney General Mike DeWine is urging the U.S. Supreme Court to rule as unconstitutional a state election law that bars people from making recklessly false statements about political candidates, saying it restricts free speech.

The legal filing made this week at the Supreme Court is unusual because DeWine is opposing a law that he is charged with defending. To handle that duty, a separate set of attorneys in his office - who will be walled off from DeWine’s work on the case - will defend the state law.

In a friend-of-the-court brief, the Republican attorney general says the election law is overly broad because it can be used against any person or organization wishing to advertise against a candidate. DeWine explains his opposition by citing the “critical importance of free speech to our democratic system, and because of the potentially chilling effect of Ohio law on civic participation by ordinary citizens.”

“I believe that the way the law is being applied today in Ohio that any citizen could be hauled before the Ohio elections commission simply if a second citizen didn’t like what they were saying,” DeWine said in a telephone interview Tuesday with The Associated Press.

At issue is the Ohio law that makes it illegal to “post, publish, circulate, distribute or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” It is being challenged by the national anti-abortion advocacy group Susan B. Anthony List.

Versions of the Ohio law have been on the books for years, passed by the legislature with the aim of helping to police heated election campaigns and restrict knowingly false statements. Specifically, a group would be found in violation if it made political statements with malice and with the intent of influencing an election.

In the 2010 election cycle, the group wanted to put up a billboard advertisement that accused then Rep. Steven Driehaus, D-Ohio, of favoring taxpayer-funded abortions by supporting President Barack Obama’s health care law.

Driehaus then complained to the Ohio state election commission, saying the proposed billboard was false and violated state law. That prompted the billboard owner to decline running the advertisement.

Driehaus, who eventually lost his re-election bid, later withdrew his complaint with the election commission before the case could be fully heard before a panel. The Susan B. Anthony List then sued in federal court, challenging the state law as unconstitutional. But the lower federal courts ruled against the group, saying it hadn’t suffered any harm in the case and thus didn’t have standing to sue.

Attorneys for the anti-abortion group say at least 15 states have similar election laws to Ohio’s, putting the free speech rights of other citizens at risk, including journalists who may seek to “fact check” candidates’ claims, according to their filings. The other states include Alaska, Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, West Virginia and Wisconsin.

According to DeWine’s brief, the Ohio law could have a chilling effect on free speech by people and groups because they may fear the threat of legal action in the heat of an election campaign. A person found in violation could be subject to six months in a county jail, according to the attorney general’s office.

A “speaker is forced to use time and resources responding to the complaint, typically at the exact moment that the campaign is peaking and his time and resources are best used elsewhere,” he wrote.

DeWine also told the AP that he was concerned that the state law could allow opposing political candidates to “game the system,” simply by filing a complaint that alleges a group’s statements are false to intimidate the group to back off. Once it does, the candidate could then withdraw his complaint, DeWine said.

It is unclear how broadly the justices may be willing to rule on the Ohio case, which is set for oral argument on April 22. The case is Susan B. Anthony List v. Driehaus, 13-193. A ruling is expected by late June.

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