arrowSection 3.2 - False Campaign Ads

This topic is monitored by Moritz Law Professor Edward B. Foley

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False And Misleading Campaign Speech In Ohio

Political campaign speech often includes false or misleading statements that many candidates and voters believe should be illegal. Ohio election laws set some limits on false and misleading campaign speech. 1 However, the First Amendment guarantee of freedom of speech severely limits the degree to which government can regulate political campaign speech.

The First Amendment Standard That Applies To False Campaign Speech

The leading case of New York Times v. Sullivan 2 establishes the scope of First Amendment protection for election campaign speech. According to the Supreme Court's opinion in this case, the First Amendment protection of campaign speech is quite extensive because it is based on the premise that there is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." 3 The opinion goes on to say that some false statements are permissible in public debate because false "statement is inevitable in free debate and must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.'" 4

The constitutional standard articulated by New York Times v. Sullivan and its progeny protects negligently-made, false statements about candidates and public officials during the course of a political campaign, while providing no protection for false statements about a candidate or public official, when those statements are made by a person who knows or, who should know, that the statements are false. 5 If a false statement about a public official or a candidate is to be the proper basis for a libel suit, it must touch on the issue of fitness for office. 6 It must also be made with "malice" as defined in the New York Times v. Sullivan decision. 7 The plaintiff asserting that he has been libeled must prove that "the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 8 In theory, so long as the statement is made with a good faith belief that it is true, regardless of emotional motivation, it "contribute[s] to the free interchange of ideas and the ascertainment of truth," 9 and is likely to found to be constitutionally protected.

There are other features of campaign speech which may give rise to First Amendment protection. Thus, a statement of opinion about a candidate, even if offensive, is constitutionally protected 10 so long as the opinion is not premised on false facts. 11 Similarly, an obviously false statement that is made for satirical purposes or obvious political hyperbole is similarly protected. 12

Ohio's Statutory Prohibition Against False And Misleading Campaign Statements

The State of Ohio has enacted legislation designed to prohibit false and misleading statements made during election campaigns. In particular, Ohio Revised Code § 3517.21 explicitly defines what constitutes impermissible campaign speech. The statutory definition includes making false statements that a candidate has been indicted or convicted of a theft offense, extortion or other crime involving financial corruption or moral turpitude; 13 making a statement that a candidate has been indicted for any crime or has been the subject of a finding by the Ohio Elections Commission without disclosing the outcome of any legal proceedings resulting from the indictment or finding; 14 making a false statement that a candidate has a record of treatment or confinement for mental disorder; 15 making a false statement that a candidate has been subjected to military discipline for criminal misconduct or dishonorably discharged from the Armed Services; 16 falsely identifying the source of a statement, issue statements under the name of another without authorization, or falsely state the endorsement or opposition to a candidate by a person or publication; 17 making false statements concerning the voting record of a candidate or public official; 18 or disseminating a false statement concerning a candidate, either knowing it to be false or with reckless disregard of if it is false or not, if the statement is designed to promote the election, nomination, or defeat of a candidate. 19

The Ohio courts have consistently interpreted Ohio statutes prohibiting false campaign statements about candidates in light of the United States Supreme Court's rulings in New York Times v. Sullivan and related cases. 20 Thus, in McKimm v. Ohio Elections Commission, the Ohio Supreme Court upheld the reprimand of a successful candidate for the office of township trustee who had circulated a campaign brochure with a cartoon which depicted a human hand appearing to pass on a bundle of money underneath the corner of a table. The Court ruled that the cartoon would be viewed by the average reader as a false factual assertion that the incumbent had accepted cash in exchange for his vote on an unbid construction contract. 21 It also ruled that the reprimand was proper because McKimm knew or should have known that his opponent's actual conduct was perfectly legal. 22

The Ohio election statute prohibiting false campaign statements about candidates appears to track cases decided in a variety of jurisdictions identifying the kinds of false campaign statements that can be regulated or punished without violating the First Amendment, if they are made with the requisite "malice". These include false statements about a candidates fitness for office 23 , a false claim of criminal or corrupt conduct, 24 a false statement that a candidate is mentally ill, 25 and, in some cases depending on the context, false claims that a candidate is a genuine communist, fascist, or socialist. 26

Can Ohio Regulate Misleading Campaign Statements Without Violating The First Amendment?

Theoretically, a misleading campaign statement ought to be protected by the First Amendment if it is not provably false. However, the degree of First Amendment protection provided for misleading as opposed to completely false statements is not entirely settled because some courts have treated misleading campaign speech as the equivalent of false, libelous speech. Thus, in Boyce & Isley, v. Cooper, 27 a North Carolina appellate court deemed false (and thus actionable) a campaign advertisement alleging that a lawyer/candidate's firm had charged $28,000 per hour to represent members of a class in a class action lawsuit. In fact, the firm had requested that a court award $23,000,000 in attorneys fees based on the huge size of a recovery in the class action. The request was based on the size of the recovery, not the number of hours he actually spent working on the case. Yet, if the candidate's firm were to be awarded the full amount requested, it would work out to $28,000 per hour.

Technically speaking, it was true that the candidate/attorney's firm sought the equivalent of $28,000 per hour when he requested the $23,000,000 fee. However, the North Carolina Court held it be false and defamatory because it failed to inform voters that the fee request was not based on an hourly charge. The court reached this conclusion in spite of the fact that the political advertisement could fairly have been characterized as political hyperbole that is protected by the First Amendment. On the other hand, in State of Washington v. 119 Vote No! Committee, 28 which concerned a campaign advertisement opposing a referendum on the state's "Death with Dignity Act," the Washington State Supreme Court rejected the argument that the ad was actionable because it stated that the Act would encourage physician-assisted suicide with insufficient safeguards. (Among other things the advertisement said that "Your eye doctor could kill you."). The court ruled that the applicable statute prohibiting false and misleading campaign statements violated the First Amendment because it was not confined to libelous statements and covered misleading statements that were about an issue rather than an individual.

Neither the U.S. Supreme Court nor the Ohio courts have squarely addressed the degree to which the First Amendment protects misleading but not libelous campaign speech. For example, suppose a challenger's campaign ad accuses an incumbent of voting to cut military spending. That accusation could negatively affect some voters' views of candidate, but in would not be considered libelous in the way that the accusation of fraud or marital infidelity would be. Although it is possible for an accusation that an incumbent cut military spending to be flat-out false (and knowingly so), the more likely scenario is that the accusation contains a grain of truth, based on the incumbent's voting record, but is presented in an intentionally misleading way (for example, the choice before the incumbent was between greater and lesser cuts in military spending, and the incumbent chose the lesser cuts, yet the challenger's ad endeavors to portray the incumbent as seeking to slash the military's budget). At present, First Amendment law remains unsettled on the extent to which these kinds of intentionally misleading campaign ads may be subject to regulation, or instead must be considered an inevitable part of robust public debate under Sullivan.

Notes

1. Ohio Revised Code § 3517.21.

2. 376 U.S. 254 (1964).

3. Id. at 270.

4. Id. at 271-272 as quoted in Chemerinsky, Constitutional Law, Principles and Policies, 2d edition, p.1009 (2002).

5. While New York Times v. Sullivan specifically applies to false statements about public officials,   Monitor Patriot Co. v. Roy, 401 U.S. 265 at 271 (1971) extended it to cover political candidates.

6. Garrison v. Louisiana, 379 U.S. 64, 77 (1964).

7. 376 U.S. 254, 279-280.

8. Id.

9. Garrison v. Louisiana, 379 U.S. at 73.

10. Gertz v. Welch, 418 U.S. 323 (1974).

11. Milkovitch v. Louraine Journal Co., 497 U.S. 1 (1990).

12. Hustler Magazine v. Falwell, 485 U.S. 46 (1985).

13. Ohio Revised Code § 3517.21(B)(4).

14. Ohio Revised Code § 3517.21(B)(5).

15. Ohio Revised Code § 3517.21(B)(6).

16. Ohio Revised Code § 3517.21(B)(7).

17. Ohio Revised Code § 3517.21(B)(8).

18. Ohio Revised Code § 3517.21(B)(9).

19. Ohio Revised Code § 3517.21(B)(10).

20. McKimm v. Ohio Elections Commission, 89 Ohio St.3d 139, 147 (2000); DeWine v. Ohio Elections Commission, 61 Ohio App. 2d 25 (1978).

21. Id. at 145.

22. Id. at 149.

23. Garrison v. Louisiana, 379 U.S. 64, 77 (1964).

24. Silsdorf v. Levine, 449 N.E. 2d 716 (1983).

25. Goldwater v. Ginzburg, 414 F.2d 324 (2 nd Cir. 1969).

26. See MacLeod v. Tribune Pub. Co. 52 Cal. 2d 536, 343 P2d 36 (1959) and Jawarsky v. Padfield, 211 So 2d 122 (La. App.1968).   It should be noted that because characterizations of a candidate's political affiliations can easily be characterized as opinion or political hyperbole, it is increasingly unlikely that a libel suit brought on such a basis will be successful.

27. 568 S.E. 2d 893 (N.C. App. 2002).

28. 957 P.2d 691 (Wash. 1998).