Ohio Solicitor Eric Murphy Wednesday urged the U.S. Supreme Court to uphold a lower court ruling that two independent organizations from Cincinnati failed to show they have been harmed by a state election law that prohibits making false statements with malice.
In an unusual legal twist, Murphy finds himself on the opposite side of the same case with his boss, Ohio Attorney General Mike DeWine, who earlier this month filed a separate brief with the justices declaring that the Ohio law violates the First Amendment’s guarantee of freedom of speech.
The justices in January agreed to accept the election law cases from Ohio, but it is unclear whether the court wants to rule on whether the law violates the Constitution instead of more narrowly concluding that the organizations could not demonstrate they faced prosecution.
In legal papers filed with the court, Murphy did not directly defend the constitutionality of the election law. Instead, he argued that “something is intuitively wrong with the notion that the broadest, most consequential attacks on democratically passed laws should be the easiest to bring.’’
The dispute emerged from the 2010 re-election campaign of Rep. Steve Driehaus, D-Cincinnati. Susan B. Anthony List, a nonprofit organization, wanted to erect a billboard criticizing Driehaus’s vote for the 2010 health-care law.
But when Driehaus’s attorney threatened to sue, the billboard’s owner declined to display the advertisement. Driehaus then complained to the Ohio Elections Commission, saying the planned ad violated the state law that prohibits false statements about a candidate.
At the same time, the Coalition Opposed to Additional Spending and Taxes, known as COAST, filed a similar suit, saying it wanted to criticize Driehaus but chose not to because of the election law.
A federal judge and the 6th U.S. Circuit Court of Appeals rejected the lawsuits, ruling that neither organization could show it was harmed because the elections commission never issued a ruling. Driehaus dropped the complaint after he was defeated by Republican Steve Chabot.
The court has scheduled oral arguments for next month.