Taking a page out of Orwell’s novel 1984, the Ohio Elections Commission operates as a modern
“Ministry of Truth’ — with the power to “determine” and “proclaim” the truth or falsity of
every statement made during an Ohio political campaign. Our firm filed an amicus curiae brief
in the U.S. Supreme Court, contending that the government has no legitimate role whatsoever to
play in guiding Americans as to how to vote.
Here is what happened. Two political committees sought to defeat Congressman Steve Driehaus
during the 2012 election cycle by claiming he supported taxpayer-funded abortion when he voted
in favor of Obamacare.
Driehaus complained that the claim was false, and filed a complaint with the Ohio Election
Commission. A committee of Commission members agreed, finding probable cause that the SBA
List knew the charge was false. Because of this, the billboard company refused to erect their
billboards containing the anti-Driehaus message. Before the full Commission could act,
Driehaus lost the election, and withdrew his charge.
The political committees, however, took the matter to federal court, contending that the action
taken by the Commission “chilled” their political speech protected by the First Amendment.
The district court dismissed the case, not on the merits, but on the ground that the First
Amendment claim was not yet “ripe” for decision. The Sixth Circuit agreed, as both courts
opined that since neither organization had been prosecuted, and neither organization could
produce any evidence that they would be chilled in any future campaign, their First Amendment
complaint had not yet matured into a an actual case or controversy.
We urged the Supreme Court to find that the groups had, in fact, presented a First Amendment
claim that is ready for judicial decision on the merits. We point out that the claim was not
based upon whether the Ohio law, in fact, keeps protected speech out of the political
marketplace of ideas, but whether, as a matter of law, Ohio has any jurisdiction whatsoever
to enter the political marketplace of ideas to ferret out truth from alleged falsehood.
In America — where the people, not the government, are sovereign — it is for the people, not
bureaucrats, to decide who, in the heat of a political campaign, is telling the truth and who
is allegedly telling lies. As Thomas Jefferson proclaimed in 1779, “the opinions of men are
not the object of civil government, nor under its jurisdiction,” therefore leaving no room for
a government Ministry of Truth.
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