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Sixth Circuit Unravels Ohio Ban on Political Lies

(CN) - Striking down Ohio's ban against false political speech, the Sixth Circuit said such a law would criminalize even the misrepresentation of a candidate's shoe size.

Section 3517.21(B) of the Ohio code makes it a crime to "post, publish, circulate, distribute or otherwise disseminate a false statement concerning a candidate" or ballot initiative, whether knowingly or with "reckless disregard."

An anti-abortion group called the Susan B. Anthony List filed suit when it ran afoul of the law in 2010 with its plans to criticize then-congressman Steven Driehaus for supporting President Barack Obama's health care law.

The group bought billboard space for an advertisement that would have read: "Shame on Steven Driehaus! Driehaus voted FOR taxpayer-funded abortion."

It complained that an attorney for the anti-abortion Democrat kept the billboard from going up, however, by threatening the company that owned the advertising space with legal action.

While the Susan B. Anthony List's constitutional challenge to the law was pending, another conservative group, the Coalition Opposed to Additional Spending and Taxes, filed a similar suit.

COAST, as the coalition abbreviates its name, said Ohio laws chilled it from making the statements it wanted about candidates.

A federal judge consolidated the complaints and dismissed them, saying any injury was "far too attenuated," because prosecution was only "speculative."

Though the Sixth Circuit affirmed , the U.S. Supreme Court revived the case in 2014, bringing SBA List and COAST victory at summary judgment.

Looking at the case again, the Sixth Circuit sided Wednesday against the state.

"On their face, Ohio's political false-statements laws target speech at the core of First Amendment protections - political speech," Judge R. Guy Cole Jr. wrote for the three-judge panel. "Contrary to the commission's arguments, Ohio's laws reach not only defamatory and fraudulent remarks, but all false speech regarding a political candidate, even that which may not be material, negative, defamatory, or libelous."

The laws do not distinguish between material and immaterial falsehoods, or comments made outside the political arena, the Cincinnati-based court found.

"Thus, influencing an election by lying about a political candidate's shoe size or vote on whether to continue a congressional debate is just as actionable as lying about a candidate's party affiliation or vote on an important policy issue, such as the Affordable Care Act," Cole said.

Finding the laws overbroad, Cole said the legislation was not narrowly tailored to serve the government's interest in promoting fair elections.

The ruling marks the second appellate defeat for former Rep. Driehaus in as many years. Though Driehaus claimed to have suffered defamation by a radio ad SBA List ran - one that accused him of supporting taxpayer-funded abortion - the Sixth Circuit shot that case down in March 2015.

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