Supreme Court Likely Decides Ohio Campaign Speech Law: Analyst
The major complaint about the law is that typically when the Ohio Election Commission makes a Probable Cause determination and says, a certain statement is knowingly and recklessly false, the person making that claim can no longer get it published, even in a paid-for ad because media companies become concerned about liability, Tokaji explained.
"So usually that Probable Cause determination is enough to kill the speech and stop it from persisting. So that is a form of enforcement of the statute, even if you never get to the ultimate point of a referral for criminal prosecution," which is possible under the law, explained Tokaji.
Tokaji believes that is why the 6th Circuit’s decision to uphold the Ohio law means the case will go to the Supreme Court.
"The question that is immediately before the [Supreme] Court is whether this matter can be heard at all by a Federal court," Tokaji said. "If the answer to that question is yes then we will proceed to see litigation over the question of whether the underlying statute is constitutional under the First Amendment of the United States Constitution."