By Maggie Thurber | for Ohio Watchdog
TRUTH AGENCY: In oral arguments before the U.S. Supreme Court, Ohio’s Election Commission was likened to the Ministry of Truth in George Orwell’s “1984.”
For years, the Ohio Elections Commission has been the politically appointed arbiter of truth when it comes to campaign speech.
But just like in George Orwell’s iconic book “1984,” which features a Ministry of Truth, the truth isn’t always what it seems.
For those of you not familiar with the novel, the Ministry of Truth is one of four that govern the nation of Oceania. Its primary role is to constantly rewrite history consistent with Party propaganda. But it’s also responsible for “Newspeak,” the language used to control and limit any concept that might pose a threat to the totalitarian state.
Today, Newspeak describes “any attempt to restrict disapproved language by a government or other powerful entity.”
Enter the Ohio Elections Commission.
Ohio has a law that prohibits false statements about a candidate’s voting record during a campaign. And as with any law, you need an agency to enforce it.
But the constitutionality of the law was challenged in the 2010 election when the Susan B. Anthony List tried to purchase a billboard saying then-U.S. Rep. Steven Driehaus, a Democrat, supported government-funded abortions in voting for the Affordable Care Act.
Driehaus filed a complaint against the pro-life group with the Elections Commission.
The commission found “probable cause” to believe the statement was false. Normally the case would be referred to a prosecutor to begin criminal proceedings. But the election occurred. Driehaus lost and then withdrew the complaint.
SBAL sued, claiming the law was a violation of the First Amendment. Because the case never went to trial, the court said they didn’t have standing because they suffered no harm. They appealed all the way to U.S. Supreme Court, which on Tuesday heard oral arguments on the matter.
And even a Supreme Court justice saw the resemblance to Orwell’s creation.
In discussion over whether the threat of prosecution or civil lawsuit had a chilling effect enough to constitute harm, Justice Antonin Scalia said:
“The mere fact that a private individual can chill somebody’s speech does not say, well, since a private individual can do it, you know, the ministry of truth can do it to. That’s not — that’s not the law.”
The justices delivered a “bashing” to Ohio’s Solicitor Eric Murphy and the commission he was representing, media reported.
Lee Strang, a constitutional scholar and professor of law at the University of Toledo, agreed.
“If you call them the Ministry of Truth based upon a novel about totalitarian regimes, I’d say that’s bashing,” he said.
And even though the question before the court was one of standing, much of the discussion spilled over into the underlying issue of the constitutionality of the law.
“It should not happen, but in practice, it does, especially in the First Amendment area,” Strang said. “It’s treated specially, especially in standing doctrine. Free speech is so important we need to allow federal courts more leeway in addressing those issues.”
And address them they did, though Murphy kept trying to focus on the standing issue.
“Orwell’s Ministry of Truth wasn’t about truth — it was really one of control and subversion,” Strang explained. “If you’re an Ohio solicitor and the judges are citing this against you, that’s a tough hill to go up. So he had to keep saying it wasn’t about substance but about standing, and they wouldn’t have anything of it. The justices kept going back to substance.”
Another argument raised was that of “a wrong capable of repetition but evading review.”
“The justices were saying that it seems like people’s speech is being chilled, which is enough to get you in the court,” Strang said, “but they’re never going to get prosecuted so they never get into the court. Ohio evades review.”
As with SBAL, a complaint is filed, the bureaucratic machinery kicks in, the election occurs, the complaint is dismissed and the prosecution never happens.
“You use your sword to stab your opponent, but then you pull it out,” Strang explained. “Not only that, the justices also seemed to see a political reason for that to happen often, thus distorting political speech. There is an incentive never to let it get to federal court.”
The statistics back that up. According to testimony, between 2001 and 2010, more than 500 complaints were filed with the commission under the false statement law.
But according to Murphy, since 1996 when the law was modified, only five of those complaints were referred to a prosecutor.
“You have a system where thousands of complaints are filed, and yet in the end, there’s very few prosecutions,” Justice Samuel Alito said to Murphy. “So you have this system that goes on and on, year after year, where arguably there’s a great chilling of — of core First Amendment speech, and yet you’re saying that basically you can’t get into Federal court.”
The justices aggressively questioned Murphy. But will that reflect a potential decision?
“All justices expressed concern about a state bureaucrat making truth decisions in the middle of a heated campaign,” Strang said. “Because of the unanimity of the justices talking about free speech and talking about it in the same way — making truth judgments — I think it will reflect in the opinion in the case.”
While Strang was not making a prediction about the decision, he said the court’s perspective showed that political speech is important and that SBAL, which wants to engage in the same kind of speech in this election cycle, “has a sword hanging over their head which might or might not fall on them — and that can have a chilling effect on speech.”
If the Supreme Court decides SBAL does have standing, the case will be remanded to Ohio for a trial on the constitutionality issue.
If they rule against SBAL, Ohio’s very own Ministry of Truth will continue to decide the truthfulness of political speech.