Election Law

The Mud Is Flung Despite State Laws Barring Political Lies; Does First Amendment Offer Protection?

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In Ohio, making a false or misleading statement in a political campaign is a misdemeanor that could bring a sentence of up to six months in jail.

The Cleveland Plain Dealer checked to see how many alleged violations led to prosecutions in the last decade. The answer: None.

Prosecutions can’t occur without a referral by the Ohio Elections Commission. There were no referrals in the last decade, and only a handful since executive director Philip Richter joined the commission in the mid-1990s. The board does make findings at an administrative level, however.

“Prosecutors have a very difficult job and should be prosecuting criminals,” Richter told the Plain Dealer, “not chasing after false statements in campaign materials in our opinion, unless it’s particularly egregious.”

Ohio is one of 20 states with laws barring false or misleading statements in political campaigns, the story says. Yet Kennesaw State University political science professor Robert Smith said he’s seeing more misleading statements. “It has become more prevalent and more characteristic of political campaigns to play footloose and fancy-free with the facts,” he told the Plain Dealer.

Are such laws constitutional? Writing last month at Election Law Blog, University of California at Irvine law professor Richard Hasen raises the question in light of the U.S. Supreme Court decision in United States v. Alvarez striking down a federal law that makes it a crime to lie about receiving military honors or decorations.

“The upshot of Alvarez,” Hasen wrote, “is that laws regulating false campaign speech are in even more constitutional trouble than they were before, and that any attempt to regulate such speech will have to be narrow, targeted, and careful in its choice of remedies.”

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