This past week held a major development in the landmark case of COAST Candidates PAC v. Ohio Elections Commission, to some known as the “Tweets” case.  FSSP represents COAST in this important case.  Specifically, Ohio Attorney General Mike DeWine filed a brief pointing out the infirmities of Ohio’s false claims statute.

Background

Ohio is one of a handful of states with a statute punishing “false” political speech in the context of election campaigns (i.e., in the vast majority of jurisdictions, “free speech” reins and those aggrieved can rely upon common law defamation if they feel aggrieved).  

The position advanced by COAST is that the Ohio Elections Commission has failed to understand a proper role for regulating in the First Amendment arena, improperly making findings in cases dealing with those who participate in electoral campaigns and, indeed, punishing speech that is true, and defensible under the U.S. and Ohio constitutions.

COAST’s opponents filed a Complaint against certain “Tweets” of COAST tying streetcar spending to brownouts of fire departments.  They hoped for a last minute finding against COAST by the OEC and resulting negative press coverage over statements COAST contends are true in the closing days of the 2011 campaign. 

COAST sued in federal court to stop claimed unconstitutional interference in COAST’s free speech rights.  That case is pending before federal district court Judge Michael Barrett.

Actions of the Ohio Attorney General

The Ohio Attorney General is the statutory counsel of the Ohio Elections Commission, defending the OEC in that suit as is his obligation under the Ohio Constitution.  DeWine is also charged in his oath of office with defending the U.S. and Ohio Constitutions.  Thus, it seems he was in a bit of a quandary in defending such an obviously unconstitutional law, and its over-reaching enforcement by the OEC.

Well, this past week, in response to that dilemma, DeWine did a remarkable and brave thing — he filed an Amicus Brief pointing out to the Court the unconstitutionality of Ohio’s False Claims statute.  He is represented by preeminent First Amendment attorney Brad Smith, a former FEC Commissioner, to present this ground-breaking argument. Judge Barrett must still decide the issues in the case, but the trail has been blazed for him by the Attorney General.