this case involves the exceptional request to declare an ohio statute facially unconstitutional in granting this request the district court made a number of errors in particular the district court oversimplify the commission's position regarding false statements failed to adequately consider the challenge to laws that they regulate only fraud and defamation and the court applied the wrong standard the commission in this case is not arguing that all knowing false statements are unprotected rather ohio regulates the still unprotected speech of fraud and defamation that's not quite how it reads i'm sorry and quite how the statute reads that's correct if you look at just how the statute reads i can understand just just to have a statue just as the statute reads however the number of ohio court cases have limited the statute and that's proper and how  consider when determining whether it's constitutional which ohio case says it's only constitutionally prescribable fraud and defamation i don't think they'd said that they say that it cannot apply to opinions it also cannot apply to statements that are only misleading it cannot apply to statements that do not disclose all the facts or if there's a statement that is only partially true and they didn't disclose everything that's not a false statement under the statute it's also not a false statement under the statute if there's an is innocent construction of the statement and when i mean i'm just getting to the question of how aggressive a court can be and quite narrowly construing it and you start up a saying  what you're saying i don't really think they've done this and that seems to be quite a bit of rewriting your honor when you take all of the manners in which the ohio courts have construed this statute what's left when it does apply is it applies to frauds fragile in situations and it applies to defamation situations any situation that would fall outside of that would fall within the one of the constraints that the ohio court says that it doesn't apply  to pick writing pam can we start rewriting the enforcement regime you know believe the federal courts would not be able to rewrite the ohio statute i'm talking about the ohio courts have looked at this and put their own constraints on it to make it constitutional so then is this a facial challenge of the statute or it is your own ok the plaintiffs have brought a plate facial challenge in that in the in the district court to ohio statute in prior years before this challenge the higher courts had constrained the statute such that it is a high like actions commissions position that it is constitutional because it only applies to unprotected speech fraud and defamation can you end up with some real perverse incentives here where you have a person who simply wants to file for frivolous complaint for example and to to essentially cause a candidate to have to respond with time and resources in the days before the campaign when they rather focus in on the campaign looks to me like the complaint about party would have to await a probable cause hearing to even deal with the  frivolous complaint is there wait a week that out real early on were doesn't have an impact on the electoral process the probable cause hearing or honor is what we doubt the frivolous it is held very shortly after a complaint is heard  the speaker in that case actually does not have to appear unless they want to appear there's no burden on the speaker to prove that what he said was true and if you read the amiga you might give the impression that the speaker has to prove what they are saying is true that's not the case the complaint it has to prove that the speech was knowingly made knowingly knowingly false and that by clear and convincing evidence of the time it takes to have the probable cause hearing and a ruling from the commission i take it which takes time well with regard to the public cause hearing the top of my head no how many days but it's a very short window of time and it would be no different i mean one there's a the attorney's fees can be recovered if it's a completely frivolous case but we know different in filing a frivolous lawsuit in a court you would have to await the time to file a motion to dismiss or rule love and sanctions i mean there's you could file a defamation case in state court or federal court and still have to have the same the constraints the discovery process so having a process to help bot and then all these other matters get resolved after the election in terms of attorneys fees and sanctions and all that sort of stuff it is possible your honor it's also highly possible that an intentional lie is made at the evil election and that's the last thing that the voters here and that there's no time to correct that law because that's the last thing they hear and that's why ohio hasn't this in place to help the integrity of the ohio selections to prevent intentional falsehoods that would hurt the integrity and also her candidates in cause voter confusion and voter issues with regard to that so both it's entirely possible i agree your honor excuse me for the same thing that happened in this case from happening in the next general election i mean in other words it's not the exact same allegation about the same law but it's based on the change same chain of reasoning wouldn't you still be able spite of your narrowing ohio state court cases to have a a couple days before an election it is possible your honor we're not saying that the commission is infallible the seven member commission at times they may make a mistake or your theory of ohio law and how it's already been  narrowly construed and as we assess the facial constitutional challenge we should assume the exact same thing that happened before it's still ok if that happens again different law different candidate no your honor what i were saying is that i thought you just said yes i'm saying it's possible that it could happen i'm not saying that it would happen i mean sorry ohio has constrained it and there's two members of a seven member pa public cause in this case however this is not an as applied challenge right now they initially brought that but when it went up to the supreme court understanding it was dropped indicated that this was just a facial challenge before this court and so we statute involving pan handling and that was the first analysis this court it was determined whether the plaintiffs had shown that that statute was overbroad meaning that in a substantial number of cases it reached protected speech that's not what we have here your honor we have there has been no evidence that this from the plaintiffs that this statute reaches a substantial number of cases maybe it reaches their case maybe if they brought in as applied challenge it would be a different story but that's what we have here we have possibly one case where it was applied to protected speech not a substantial number and so we don't even go get to past the overgrowth analysis in this case what would happen if someone there are two candidates one is truly a congressional medal of honor winner the other candidate lies you know a couple days before the election says he's lying he's not a congressional medal of honor winner he's been lying all along it meets all the standards for defamation it's a knowing  knowing what happened in that case he was making the case then i'm sorry i was a little there are two opponents it's just like anything you have two opponents and one of them is saying falsely that his opponent is not a congressional medal of honor winner if that if the congressional honor winner filed a complaint against that speaker then he could be brought before the commission and the commission would then hear that case and they would have a probable cause hearing if they wanted to and they found probable cause it would go well of course recently covers false statements about congressional medal of honor winners going to the statute in alvarez the stolen valor act had no constraints that apply to any time any place in any manner the statute is different it applies only in the kind it has an election that applies with knowing in actual malice standard and in addition it apply in that case the situation you give would be fraudulent they would be saying making a fraudulent statement statement both of which are unprotected speech alvarez clearly holds that defamation is still unprotected and fraud is still unprotected and they look for fraud they give examples of impersonating an officer or lying to a federal agency none of those neither of those the supreme court noted have a monetary damage to the damage was harm to the government and in this case there would be harm to the candidate but also harm to the electoral process and that's what ohio is most concerned with the harm to the entire election integrity so that the statement so you make a false statement that's would get you in trouble under the stolen valor act just making the statement you had to have you didn't need a purpose for the ohio election law you have to have a purpose a purpose to affect the election and that's what makes it a fraudulent you have a you're trying to induce reliance rather reliance actually happens doesn't matter under the under the fraud if you look at both of the cases the statutes i cited in one nine hundred twelve and one zero ten to one both the federal statutes impersonating an officer and lying to election commission the sort that out it seems so easy just got a response next day you kidding me i've just searched he's not just searched he is my opponent's a liar well a couple of things with regard to that one we don't to if you don't have if it's unprotected speech fraud or defamation you don't need it to be any kind of narrow tailoring or sufficient tailoring and then that kind of counter speech analysis goes to that but if we want to go there and i say that's what you're going when the supreme court has said on a number of occasions that it's a lie when it's made in defamation that it hurts the character of that person and it's court has discussed that i mean they say that it's hard to rebut a lot i once it's out there that the truth rarely catches up with the law i so for the character innocent sasa nation the supreme court has noted that why is the forefront and the truth doesn't always catch up to the law and in addition you have the character assassination you have the harm to the elections like the integrity of election integrity means that you tell the truth that you are truthful that the elections are truthful as much as possible and so when you have a lot i the integrity of the election process is damaged and to repair that is not as easy as just coming forward with the truth i mean people hear lies all the time and they get discourag find that the there's no longer confidence in the elections because of all the lies and so high i was trying to her vent the integrity of our elections from being devalued and so the counter speech might be able to correct the life for that person for the morning your honour's yacov roth for both police your honor since alvarez both the eighth circuit and the massachusetts supreme judicial court have unanimously invalidated political false statement statutes just like ohio here and that's statute issue here these types of statutes really are much worse than the statute in alvarez from free speech perspective for a number of reasons i mean most importantly they apply in a political context and political speech is presumptively entitled to the highest level constitutional protection as opposed to lying about whether you received the congressional medal of honor which is quite a bit further from the core of the person second you have a much more serious chilling effect  this context in the political context both because it's very easy to accuse a political opponent of lying given the nature of political debate in a political spin and because the procedures for the enforcement of this type of statute where anyone can bring the complaint and impose burdens on the speaker without even making a showing of a falsity and not take the court is enough to take our word for it that's what the ohio attorney general told the supreme court when this case was up there last  it's what the supreme court in part relied on in holding that we had standing to challenge the statute was that chilling effect my main question for your side of the cases let's just say you're right there does seem to be an intuition that you can regulate false statements or at least fraud and defamation in relation to elections is this is there a way to do this is the problem here the and enforcement scheme in this state agency in the way it processes cases already or do you mean when you read the massachusetts case which i you know state law they almost make it seem like now there's just no room for any of this is that where you are all you can't do this well certainly your honor there are defamation laws defamation laws apply to politicians just like they apply to anyone else but creating a special protection for politicians that is really not about their reputation at all but is about ensuring that we're protecting voters from speech that the government believes the voters should hear because it's going to mislead them that type of statute is just fundamentally incompatible with some of the outside a good haven't you mischaracterize that go this is really not protecting the people as much as it's going to the integrity of the entire process of democracy is not actually i think the premise of the democracy is that we let the voters hear all the points of view and all and the vigorous debate and the people will then sift through it and determine truth or fal but your honor i think we can all agree that those types of lies are not helpful they're not a good thing but the question really for the court i think is is the is it a good solution to that problem to have the government establish itself as  arbiter of truth in the political process to set up a ministry of truth but use alvarez's words and either way you just rely on fraud and defamation there's still going to be this ministry of truth it's called the courts right right so there is this is acception for defamation but it's much narrower and it's serving them up quite a different purpose and there is this historical precedent for it that alvarez emphasized you know you have citizen a harming citizen be in a very tangible way goes to court there is this protection of actual malice which supreme court has put into ensure there's enough breathing room in that context yes the courts are getting involved it's a much broader and more sweeping power to say political writ large we're going to essentially truth ministry of truth or truth police bureaucrats deciding what is or is not what voters should or should not hear in making their decisions speech really the case is talking about that of have been very different context time but generally commercial fraud where there is some money or property that's being induced i don't think you can really just pull that concept and drop it into the political context and say false you know any false statement in in political debate somehow become it was a rod minimum there might be as applied risk there so ok we applied defamation new york times for seven standard that's it if you doesn't force a number of other law so they're not actually out of a job as a result as a result of this lawsuit there's a whole host of fire i'm sure from their procedures whole host of election related requirements and filing and disclosure and all sorts of things that they enforce that are that are not problematic an we think this is true we think this is false without burdening speech without punishing speech that's something different and that's involvement in the marketplace of ideas rather than interference with or intrusion on the marketplace of ideas i think that could be a different situation if the high legislature decides to go in that direction but that's that's not what they've done and i think this game is pretty clearly what it would require clear and convincing evidence to work like you still have the same risk of opponents using those findings right well i think the problem with the with the scheme the problem of the scheme as it stands is the burdens that it imposes on the speaker and the threat and the punishment that it imposes on the speaker so the need to hire the attorney to participate in the process to subject yourself to discovery as we saw in this case and at the end of the road to have a threat of criminal penalties so you realize defamation law takes you out from under the criminal law the fraud wouldn't necessarily but when you have some of the same pre election problems i mean if we don't have this regime is in a possible that aggressive people running for office will just file defamation actions c do all the same things respectfully i don't think we've seen that in practice i mean every state has the defamation defamation common law i don't think that has been a problem we do have a pretty demonstrably problem of abuse with this with this statute for the reason for that is defamation is considerably narrowed in the statute and i think it's important to emphasize that this statute also prescribes statements that are meant to promote a candidate right the candidate who says i won the congressional medal of honor just like alvarez that itself is would be covered by this statute if he did not win the congressional that's not remotely defamation it's a positive thing and it covers all sorts of critiques that don't wouldn't qualify as the family tory under the common law and you have a sister statute that i think is illustrated that applies the same rule to ballot initiatives where you don't have any of the same interest at applying defamation cases which i think sort of proves the point the statue is not about the same think just at its core inconsistent with the first amendment and that's this idea that the government has an interest in paternalistically shielding population from the speech t and throw a lot of problems with that type of regime including that you know if you're allowing the government to punish falsity that means you're allowing the government to define truth and falsity in the context of political debate even the dissenters in alvarez thought that was a serious problem that if this if you know they didn't think the stolen valor act presented that type of chilling effect or that type of negative consequence but they did make very clear in the political context you have very different concerns because there's a risk of political abuse there's a risk of selective enforcement these are you know they're very serious first amendment harms you raise the  speech is just beyond the first minute protection altogether is not is not that law anymore and that was sort of the the key part of a strike that struck then went on to say certain other things like you know if the government is so you agree that the federal false statement laws is constitutional one thousand one no and alvarez specifically addressed that and distinguished it but it's a very different context and it's a very different you have different very different consequences from if you lot of the i r s when you're filing your taxes nobody's expecting counter speech to come and correct that when you're out in in the political electoral campaign context and you're criticizing the i maybe you lie about something they did we do expect the you know the opposing candidate or opposing campaign to come in and give the opposing point of view and then let the voters make that determination so you make false statements in a job application it's like an ere you're certainly not talking about any sort of chilling effect that i think the first moment would be concerned with and you don't have you don't have counter speech which again in the in the political context is that's the default that's supreme court said was those who govern should be the last people to help decide who should go that's the context we're talking about here talking about the context of elections and the people making their decisions about who should govern them and to allow the government to enter intercede into that process to suppress certain points of view i think is is just deeply problematic from the first moment we eat what would be the point of view that this would be suppressing who said that a couple times oh well the the issue is if you're if the prohibition is no falsity right then the government is making the determination what it is or is not true or false in this case i think is a good example we had a very important statute that was and acted before the care act susan b anthony list had a certain interpretation of the statute very situation and it leads to a real chilling effect on even truthful speech because any candidate can make that type of allegation bring that type of complaint just by doing so i e subjects the speaker to all sorts of costs and burdens and threats of discovery and that is enough to deter even truthful speech from taking place and you know that's the concern that alvarez had it was a fairly attenuated a hypothetical concern when you're talking about the stolen valor act given how narrow the how narrow the prescription was in that case it's a much more serious concern i think when sex exception if the basis for the content distinction sort of aligns with the reason why the speech is prescribe on the first place so you can do the worst you know the worst type of fighting words or the most  obscene pornography problem here if you know even if the commission were right the statute was limited to defamation and not you still have the problem because the the limitation to narrowly construed it to defamation unless for sake of argument say fraud they've construed in certain ways they've construed to say for example it has to be fact not opinion agree with that they've construed to say if a reasonable reader could believe that you know if there's a reasonable reading that would be true then you know you're right you're outside the scope of statute all that is it was equally true of the statute and avarice it was clear verifiable objective lies and supreme court still invalidated it and as we were discussing earlier with respect to fraud you know that's just it's an inapt category when you're talking about political debate it's a it's a commercial concept it's a commercial concept that's being sort of mis misapplied in that the clearly said that the use of the known lie as a tool is at once at odds with the premises of democracy democratic government and with the orderly manner in which economic social and political changes to be affected so if a law is are not know we are not saying that this statute is only defamation we strongly believe are arguing that this is for also regulates fraud it is not only in a commercial contacts alvarez itself makes clear that it's not a commercial contacts both a number of statutes besides one nine hundred twelve and ten zero one were cited ruth regard to lying with regard to fraud and the court said those statutes are different because they implicate fraud those are different than the stolen  act because they are fraudulent head and they even noted that no these don't have a monetary issue with regard to them there's no monetary requirement for impersonating an officer there's no monetary requirement  for giving a false statement to an agency and there's no reliance requirement but alvarez the opinions of alvarez said that is fraud we are saying that this statute regulates fraud in the election process that directly harms integrity and that's why has an interest a compelling interest even if we if we get to that step which we are first saying we don't even need to get to that step because it is fraud but that's what we're regulating mcentire the supreme court case recognize that our false statement statutes are principal way to regulate fraud in our elections and in a couple real quick points there's only three days or last between a probable cause hearing a complaint and a probable cause hearing so there's hardly any time that the person has to wait in order to get that resolved i think that was addressed in your question judge call the criminal and element is rarely used i mean that would be up to the question of a prosecutor  to decide whether criminal charges would be brought and the plaintiffs keep indicating that this is a political process this is the political context and sullivan particularly makes clear it was in a political context the involved of a politician and defamation in the way the government can regulate political speech is in a showing of actual malice by clear and convincing evidence that's the gold standard and that's what we have here your honor actual malice