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Court Strikes Ohio Election Speech Law, Quotes Frank Underwood

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By William Peacock, Esq. on September 12, 2014 12:48 PM

This was a stupid law from the start. Now, it is a stupid, dead law.

Ohio banned making false statements in elections. In 2010, the Susan B. Anthony List erected billboards stating that former Cincinnati Congressman Steve Driehaus had voted for "taxpayer-funded abortion" by backing Obamacare, The Plain Dealer recounts. The group was charged with violating the law, but the complaint was dropped after Driehaus lost the election.

After two lower courts held that the Susan B. Anthony List lacked standing to challenge the law's constitutionality, the U.S. Supreme Court reversed earlier this year, holding that the threat of future prosecution could chill speech and was sufficient to show an injury for Article III purposes.

Finally, four years after the battle began, U.S. District Court Judge Timothy Black, with a bit of pop culture flair, held that the law was unconstitutional and permanently blocked it.

The Cure for False Speech Is More Speech

As the Supreme Court has stated over and over again, the cure for false speech is typically more speech.

Judge Black quoted the Court, with added emphasis:

"The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth."

But for those who aren't convinced by the statements of the nation's highest court, Judge Black cited an additional authority: Frank Underwood, the fictional politician from Netflix's "House of Cards":

"There's no better way to overpower a trickle of doubt than with a flood of naked truth."

"In short, the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is," Judge Black wrote. "Ohio's false-statements laws do not accomplish this, and the Court is not empowered to re-write the statutes; that is the job of the Legislature.

"Accordingly, the Court finds that Ohio's laws are more burdensome than necessary to accomplish their alleged objectives and do not satisfy strict scrutiny under the Constitution of the United States. Therefore, the Court strikes down the laws as unconstitutional and permanently enjoins the Ohio Elections Commission and its members from enforcing Ohio's political false-statements laws." (emphasis in original)

Everyone Knew This Law Was Stupid

Judge Black's heavy use of bolding and underlining seems to scream: "Dude, seriously?"

The truth is, this is a blatantly unconstitutional law -- political speech, even false political speech, is among the most protected forms of speech under the First Amendment. Even the man responsible for defending the law, Ohio Attorney General Mike DeWine, thought the law was idiotic.

DeWine took a truly unique approach to the "defending laws that are stupid" problem that attorneys general seem to be facing far too often nowadays: In his official capacity, he defended the law, but on his own, he submitted an amicus brief to the Supreme Court opposing it. His office told the Plain Dealer that it would review Judge Black's decision before deciding whether to appeal.

Legal satirist P.J. O'Rourke, along with the Cato Institute, also submitted an amicus brief in the case, one that may be the funniest amicus brief ever written.

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