Ban on lies in judicial campaigns constitutional, ban on misleading statements not, rules Ohio Supreme Court

In a decision that provides an interesting contrast to the recent federal court opinion striking down the Ohio law banning false statements in political campaigns, the Supreme Court of Ohio has recently ruled on Ohio's ban on lies and misleading statements in judicial campaigns as found in the Code of Judicial Conduct. The Court found Jud.Cond.R. 4.3(A)'s ban on misleading statements that are true to be unconstitutionally overbroad, but the ban on knowing or reckless false statements to be acceptable under strict scrutiny.

This appears to differ from the ruling in Susan B. Anthony List v. Ohio Elections Commission, in the U.S. District Court for the Southern District of Ohio, wherein Judge Black ruled that the Ohio law banning false statement in political campaigns was not narrowly tailored to a compelling government interest and stated that "the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and to let the voters, not the Government, decide what the political truth is."

The case before the Ohio Supreme Court involves a judge on the 11th District Court of Appeals who ran for election in 2012. Colleen Mary O'Toole was first elected to this judgeship in 2004 and served until 2011, after she was defeated in the primaries. She then ran for (and won) the position again in 2012. Although she had not been on the bench since 2011, during her election campaign in 2012 O'Toole used certain campaign materials showing her in judicial robes and referring to her as "Judge O'Toole." A five-judge commission appointed by the Ohio Supreme Court sanctioned O'Toole, finding that she had violated Jud.Cond.R. 4.3(A)'s bans on false statements and true, but misleading statements. She appealed this decision, alleging that these portions of the Code violated the First and Fourteenth Amendments.

Writing for the majority, Justice Lanzinger held that the state has a "compelling interest in promoting and maintaining an independent judiciary, ensuring public confidence in the independence, impartiality, integrity, and competence of judges, and ensuring that the conduct of judicial candidates furthers, rather than impairs, these interests." She ruled that the portion of the Code of Judicial Conduct banning false statements made recklessly or knowingly was sufficiently narrowly tailored to fulfill this compelling government interest, but that the portion banning true, but misleading statements was not. The Court held that this section of the Code had a dramatic chilling effect on speech, stating that, "this portion of the rule does not leave room for innocent misstatements or for honest, truthful statements made in good faith but that could deceive some listeners."

In reaching this decision, Justice Lanzinger distinguished the case from U.S. v. Alvarez, which was a key case cited by Judge Black in SBA List. Lanzinger wrote, "Alvarez does not consider whether the state can ever have a compelling interest in restricting false speech solely on the basis that it is false so that such prohibition could withstand strict scrutiny." She went on to hold that the state does have a compelling interest in maintaining the integrity of the judiciary, and that Alvarez does not require it to reject that interest.

The Court ordered that the second part of Jud.Cond.R. 4.3(A) which reads,"or, if true, that would be deceiving or misleading to a reasonable person," must be severed from the rule, and dismissed the sanctions against O'Toole for violating this portion of the Code.  The Court upheld the sanctions against O'Toole for violating the ban on false statements, relating to her act of calling herself "judge" when she was not.

For more information about this case see the docket information and this article from Court News Ohio.