TOKAJI: "I think there are at least some portions of Ohio’s false campaign speech law that are quite vulnerable to a constitutional challenge, and, in my opinion, probably should be struck down. On the other hand, there are other aspects of it that could be upheld. The law is designed to get at false statements made in the course of a political campaign. And we can all see that there is some harm in knowingly false statements made in political campaigns. On the other hand, there are serious free speech interests under the First Amendment. And there’s a real worry that truthful statements about candidates will be chilled as a result of Ohio’s law."
INGLES: "So you said you are think there are portions of the law that should be struck down. Tell me about those."
TOKAJI: "I think the portion of Ohio’s law that is most difficult to defend is its prohibition on false statements in the context of initiative campaigns and referendum campaigns. You can’t defame a ballot measure in the same way you can defame a person. On the other hand, I think some aspects of Ohio’s law are at least defensible on the ground that they are designed to prevent defamation or libel that are knowingly false statements, or statements that were made in reckless disregard of whether they are true or false. The state may be able to defend that aspect of the law, again, to the extent that it prohibits speech that would rise to the level of defamation under established person in the law."
INGLES: "The Susan B. Anthony List is saying that they are going to take this to court, so what does that mean for Ohioans and what does that mean for this law in the short term?"
TOKAJI: "I think it’s a really good thing that Susan B. Anthony won this portion of the case and will be able to make its very important First Amendment claims in the court. And the court, I expect, will take into consideration the chilling effect that this law has as well as the justifications the state presents that support this law, including the need to prevent defamatory statements. And at the end of the day, it is part of our system that federal courts make the decision as to whether a law does or does not comply with the First Amendment."
Tokaji notes other states have similar laws on their books and if this law is eventually struck down in court, it could affect those other laws too.
