Ohio AG Just Told SCOTUS That His State's Law is Stupid - U.S. Sixth Circuit
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Ohio AG Just Told SCOTUS That His State's Law is Stupid

Ohio Attorney General Mike DeWine, we couldn't agree more.

Folks, Ohio has this ridiculous election law that bars people from making false statements with malice about candidates. It's a load of crap, restricts speech, is far from content-neutral, and basically makes political satire illegal.

The Supreme Court has repeatedly stated that the remedy for false speech is more speech, not some unconstitutional law that will die an expensive (litigating the issue up to the Supreme Court can't be cheap) death. And now, according to The Columbus Dispatch, the state's Attorney General just took the same position, hopefully nuking the case before Ohio further embarrasses itself.

Another Attorney General Backs Down

We'd be remiss not to point this out. DeWine's refusal to fight for his state's inadvisable legislation is part of a larger trend of attorneys general backing down nationwide. Granted most of those are in same-sex marriage disputes, and came after court rulings in other states' cases put a likely execution date on their own laws, but still, it begs the question: when is it okay for Attorneys General to decide not to defend a law?

Attorney General Eric Holder, discussing the trend in the same-sex marriage context, stated, "Engaging in that process and making that determination is something that's appropriate for an attorney general to do," but cautioned that officials should apply high levels of scrutiny before doing so.

It's not an easy question to answer. If attorneys general can back down whenever they "apply scrutiny" or their judgment indicates that it is the right move, aren't they stepping on judicial and legislative toes, respectively?

This Law is Ridiculous

That being said, what about cases where the law is clearly and almost irrefutably unconstitutional?

As a hilarious amicus brief pointed out, amidst pages of snark, name-calling, and assorted mockery, the Supreme Court held in 2012 that false statements are protected by free speech too. It's quite possible that, under SCOTUS precedent, that this law is completely indefensible, in which case, backing down might be the responsible move.

We're curious: what are your thoughts? Tweet us @FindLawLP.

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