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00:00:00[CAPTIONING PERFORMED BY THE
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00:00:02WHICH IS RESPONSIBLE FOR ITS
CAPTION CONTENT AND ACCURACY.
00:00:03VISIT NCICAP.ORG]
ANNOUNCER: SUPPORT FOR THE
00:00:04STATEWIDE BROADCAST OF THE
"STATE OF OHIO" COMES FROM THE
00:00:06LAW OFFICES OF PORTER, WRIGHT,
MORRIS AND ARTHUR, LLP, HELPING
00:00:09BUSINESS AND INDIVIDUAL WITH
COMPLEX LEGAL PROBLEMS IN OHIO,
00:00:11ACROSS THE COUNTRY, AND AROUND
THE WORLD, ONLINE AT
00:00:12PORTERWRIGHT.COM, AND FROM THE
OHIO EDUCATION ASSOCIATION,
00:00:20REPRESENTING 120,000 MEMBERS WHO
WORK TO INSPIRE THEIR STUDENTS
00:00:27TO THINK CREATIVELY AND
EXPERIENCE THE JOY OF LEARNING,
00:00:28ONLINE AT OHEA.COM.
KAREN: FEDERAL REGULATORS QUASH
00:00:30A PAIR OF UTILITIES' RATE HIKE
PLANS.
00:00:32WOULD-BE PATIENTS WEIGH IN ON
MEDICAL MARIJUANA PROPOSALS.
00:00:35AND IT'S LEGAL TO LIE IN
CAMPAIGN ADS.
00:00:37TWO LEGAL EXPERTS TALK ABOUT
THAT DECISION AND THIS YEAR'S
00:00:39PRESIDENTIAL CONTEST.
ALL THIS WEEK IN "THE STATE OF
00:00:43OHIO."
00:00:49KAREN: FEDERAL REGULATORS HAVE
NOW STEPPED IN ON THE DEALS THAT
00:00:54WOULD HAVE ALLOWED TWO ELECTRIC
UTILITIES TO IMPOSE SHORT-TERM
00:01:07RATE INCREASES ON CUSTOMERS TO
BRING IN MONEY FOR STRUGGLING
00:01:09COAL AND NUCLEAR PLANTS, DEALS
WE TALKED ABOUT ON THIS SHOW IN
00:01:11FEBRUARY.
THE FEDERAL ENERGY REGULATORY
00:01:13COMMISSION HAS BLOCKED THE POWER
PURCHASE AGREEMENTS FILED BY
00:01:16AKRON-BASED FIRSTENERGY AND
COLUMBUS-BASED AMERICAN ELECTRIC
00:01:18POWER THAT WERE APPROVED BY THE
PUBLIC UTILITIES COMMISSION LAST
00:01:20MONTH.
FERC SAYS IN A UNANIMOUS RULING
00:01:22THAT THOSE PPAS ARE NOT VALID
UNLESS THE TWO COMPANIES RECEIVE
00:01:24FEDERAL APPROVAL.
THE DECISION COMES IN RESPONSE
00:01:26TO COMPLAINTS FILED BY COMPETING
ELECTRICITY COMPANIES THAT SAY
00:01:29THE PLANS ARE ILLEGAL SUBSIDIES.
MANUFACTURERS,
00:01:33ENVIRONMENTALISTS, AND CONSUMER
GROUPS CHEERED THE DECISION,
00:01:36SAYING IT COULD SAVE CUSTOMERS
MILLIONS OF DOLLARS OVER THE
00:01:42NEXT EIGHT YEARS.
THE UTILITIES SAY THEY'RE NOW
00:01:45EVALUATING THEIR OPTIONS.
OHIO'S SENIOR U.S. SENATOR IS ON
00:01:47THE SHORTLIST OF POSSIBLE
RUNNING MATES FOR DEMOCRATIC
00:01:53PRESIDENTIAL FRONTRUNNER HILLARY
CLINTON.
00:01:55SENATOR SHERROD BROWN HAS SAID
OVER AND OVER THAT HE DOESN'T
00:02:03WANT TO BE VP.
HE SAID IT AGAIN AFTER BEING
00:02:05ASKED WHETHER HE WAS BEING
VETTED AS A POSSIBLE
00:02:08RUNNINGMATE.
SEN. BROWN: I'M NOT -- I DON'T
00:02:09KNOW THAT ANYBODY'S VETTED YET.
I DON'T -- I LOVE THIS JOB AND I
00:02:11WANT TO KEEP DOING THIS.
I DON'T LOOK IN THE MIRROR AND
00:02:12SEE A PRESIDENT AS A NUMBER OF
MY COLLEAGUES DO.
00:02:14MY WIFE SAID, "CAN YOU IMAGINE
LIVING WITH SOMEBODY WHO THINKS
00:02:16HE'S IMPORTANT ENOUGH TO BE HEAD
OF THE FREE WORLD?"
00:02:18I DON'T HAVE ANY INTEREST IN
THAT.
00:02:20I WANT TO KEEP DOING THIS JOB.
KAREN: AND BROWN ALSO SAID THAT
00:02:22HE DOESN'T THINK CLINTON WILL
ASK HIM TO BE VICE PRESIDENT IF
00:02:37SHE WINS THE NOMINATION AND THE
ELECTION.
00:02:39BUT HE ADMITS THAT GIVEN HIS
SUPPORT FROM THE LIBERAL WING OF
00:02:42THE PARTY AND HIS ROOTS IN THE
KEY STATE OF OHIO, IT MAKES
00:02:44SENSE FOR HILLARY CLINTON TO BE
CONSIDERING HIM FOR THE SLOT,
00:02:46BUT HE SAYS IT WOULD MAKE SENSE
FOR HER TO BE LOOKING AT FIVE OR
00:02:48SIX OTHERS, TOO.
THEY REPORTEDLY INCLUDE NEW
00:02:50JERSEY SENATOR CORY BOOKER,
VIRGINIA SENATORS TIM KAINE AND
00:02:51MARK WARNER, AND FORMER
MASSACHUSETTS GOVERNOR DEVAL
00:02:53PATRICK.
BROWN WAS AT THE STATEHOUSE TO
00:02:55JOIN TWO DEMOCRATIC STATE
LAWMAKERS IN CRITICIZING THE
00:02:57PLAN TO ASK THE FEDERAL
GOVERNMENT FOR PERMISSION TO
00:02:59CHARGE 1.5 MILLION MEDICAID
RECIPIENTS SMALL PREMIUMS TO
00:03:01STAY IN THE PROGRAM.
REPRESENTATIVE NICKIE ANTONIO OF
00:03:04LAKEWOOD AND SENATOR KENNY YUKO
OF RICHMOND HEIGHTS ARE URGING
00:03:06OTHER OPPONENTS TO SPEAK OUT.
THEY SAY THE PREMIUM PLAN, WHICH
00:03:10WOULD REQUIRE A WAIVER FROM THE
FEDERAL GOVERNMENT, WILL COST
00:03:12THE STATE MORE WITH
ADMINISTRATIVE OVERHEAD THAN IT
00:03:29WILL TAKE IN AND ANTONIO SAYS IT
IS AN UNFAIR BURDEN ON OHIO'S
00:03:31LOW-INCOME PEOPLE.
REP. ANTONIO: WE SHOULD REMOVE,
00:03:39NOT CONSTRUCT, BARRIERS FOR
PEOPLE TO ACHIEVE OPTIMAL HEALTH
00:03:41REGARDLESS OF THEIR INCOME.
WE MUST EXPOSE THE HEALTHY OHIO
00:03:43WAIVER PROGRAM FOR THE TROJAN
HORSE THAT IT IS.
00:03:45IT'S SET TO UNDO THE GOOD WORK
OF MEDICAID EXPANSION.
00:03:47KAREN: BUT ONE OF THE PLAN'S
CHIEF BACKERS, REPUBLICAN STATE
00:03:48REPRESENTATIVE JIM BUTLER OF
OAKWOOD, NEAR DAYTON, SAYS THE
00:03:50PROGRAM IS VERY SIMILAR TO AN
INDIANA PROGRAM THAT WAS GRANTED
00:03:52A WAIVER.
REP. BUTLER: THE BOTTOM LINE
00:03:54WITH THIS IS, WE'VE BASED THIS
PROGRAM ON DATA.
00:03:55AND IT'S PROVEN TO WORK.
AND I WOULD ALSO ASK, WELL,
00:03:57WHAT'S THEIR SOLUTION?
OTHER THAN, I GUESS, SPENDING
00:04:00MORE MONEY.
WE CAN'T SPEND MORE MONEY.
00:04:02EVENTUALLY WHAT'S GOING TO
HAPPEN IS IF THEY REALLY CARE
00:04:06ABOUT MEDICAID AND FRICKING
HELPING PEOPLE, THEN THEY SHOULD
00:04:10WANT THE PROGRAM TO BE
SUSTAINABLE.
00:04:16AND AS OF RIGHT NOW, OUR COSTS
HAVE GONE UP OVER 50% FROM 2011
00:04:17TO 2017.
KAREN: THE MEDICAID DEPARTMENT
00:04:18HAS HELD TWO PUBLIC HEARINGS,
ONE IN COLUMBUS AND ONE IN
00:04:20CINCINNATI.
NO FURTHER ONES ARE PLANNED.
00:04:23THE PUBLIC COMMENT PERIOD ON THE
WAIVER ENDS MAY 16.
00:04:26PATIENTS WHO WANT MEDICAL
MARIJUANA IN OHIO ARE STARTING
00:04:33TO TAKE SIDES ON WHICH PLANS
THEY SUPPORT.
00:04:35A GROUP OF THEM SPOKE OUT IN
FAVOR OF THE MARIJUANA POLICY
00:04:37PROJECT'S PROPOSED
CONSTITUTIONAL AMENDMENT, AS IT
00:04:39COMPARES TO THE NEW BILL THAT'S
BEING HEARD IN A HOUSE
00:04:41COMMITTEE.
DANA KOVACH OF ST. CLAIRSVILLE
00:04:44SAID SHE WANTED THE OPPORTUNITY
FOR HER SON, WHO HAS BRAIN
00:04:46CANCER, TO TRY MEDICAL
MARIJUANA, BUT SAID THE HOUSE
00:04:49BILL LIMITS THE TYPES OF
MARIJUANA PRODUCTS AVAILABLE AND
00:04:52DOESN'T OFFER ENOUGH PROTECTIONS
TO CAREGIVERS.
00:05:00SO SHE IS SUPPORTING THAT
CONSTITUTIONAL AMENDMENT.
00:05:01DANA: I'VE JUST BEEN IN THIS
BATTLE FOR A LONG TIME, AND I'M
00:05:04GOING TO BE HONEST WITH YOU.
I PUT MY HEART AND SOUL IN THAT
00:05:06LEGISLATION.
I PRAYED THAT THE STATE OF OHIO
00:05:08WOULD NOT DISAPPOINT.
THAT THEY WOULD LISTEN TO THE
00:05:09PATIENTS AFTER ALL THE TOWN
HALLS AND ALL OF THOSE TASK
00:05:11FORCE HEARINGS.
YOU KNOW, I THOUGHT FOR SURE
00:05:19THEY HAD HEARD US AND THAT THEY
LISTENED.
00:05:21KAREN: COLUMBUS RESIDENTS DANE
GRIFFITH, WHO HAS AN AUTOIMMUNE
00:05:23DISEASE, AND JENNIFER WRIGHT,
WHO HAS A DEGENERATIVE SPINE
00:05:25CONDITION, ALSO TALKED ABOUT HOW
THEY WANT THE CHANCE TO SEE IF
00:05:27MEDICAL MARIJUANA CAN HELP THEM.
THE MARIJUANA POLICY PROJECT IS
00:05:32IN THE PROCESS OF GATHERING
SIGNATURES FOR A BALLOT ISSUE,
00:05:34AS IS A GROUP CALLED GRASSROOTS
OHIO, WHICH HAS PROPOSED ITS OW
00:05:38MEDICAL POT AND HEMP MEASURE
THAT HAS NO REGULATORY
00:05:41STRUCTURE.
STATE LAWMAKERS SUGGEST THE
00:05:44HOUSE BILL WILL MOVE QUICKLY,
AND HAVE ASKED THOSE WHO WANT TO
00:05:46SEE MEDICAL MARIJUANA LEGALIZED
IN OHIO TO OFFER INPUT AND
00:05:52SUPPORT THE MEASURE, AND
REPUBLICAN SPEAKER CLIFF
00:05:54ROSENBERGER OF CLARKSVILLE HAS
SAID IT WOULD BE "IRRESPONSIBLE"
00:05:57FOR THOSE PURSUING BALLOT
CAMPAIGNS TO PROCEED RATHER THAN
00:06:00JOINING THE LEGISLATIVE EFFORT.
REP. ROSENBERGER: TO THE FOLKS
00:06:04THAT ARE STILL PURSUING BALLOT
INITIATIVES, THIS HAS BEEN AN
00:06:12ISSUE TO WHICH WE HAVE TAKEN
VERY SERIOUSLY, IT IS AN ISSUE
00:06:14THAT WE ARE GIVING A LOT OF TIME
AND AN TO.
00:06:18THIS IS THE PEOPLE'S HOUSE, AND
WE ARE GOING TO HAVE THE BEST
00:06:24INTEREST IN MEDICAL MARIJUANA
AND THE PURPOSES CONSIDERED, BUT
00:06:27WE WANT TO MAKE SURE WE ARE
GOING ABOUT IT THE RIGHT WAY,
00:06:30AND THIS TASK FORCE HAS GIVEN US
THAT OPPORTUNITY.
00:06:34KAREN: A PUBLIC RECORDS REQUEST
MADE BY A REPORTER, AN ACTIVIST,
00:06:36OR ANY CONCERNED CITIZEN COULD
START AS SOMETHING SIMPLE AND
00:06:37SPIRAL INTO A LONG, EXPENSIVE
COURT BATTLE.
00:06:39A KEY STATE LAWMAKERS SAY HE
WANTS TO CHANGE THAT.
00:06:42REPUBLICAN SENATE PRESIDENT
KEITH FABER OF CELINA IS PUSHING
00:06:44A BILL THAT HE SAYS WOULD CREATE
A NEW, FASTER PUBLIC RECORDS
00:06:47REQUEST PROCESS BY USING LOCAL
CLERKS OF COURT AND MEDIATORS.
00:06:52SEN. FABER: YOU'D START OUT WIT
TWO CHOICES, YOU CAN EITHER FILE
00:07:01A LAWSUIT WITH THE TRADITIONAL
ROUTE, NOTHING CHANGES, OR YOU
00:07:05CAN USE THE EXPEDITED PROCESS
GOING TO YOUR LOCAL COURT
00:07:08CLERK'S OFFICE.
IF YOU ARE IN MERCER COUNTY, YOU
00:07:12DON'T HAVE TO DRIVE TO COLUMBUS,
YOU CAN DO ALL OF THIS IN MERCER
00:07:15COUNTY.
IF YOU WANT TO FILE IN MERCER
00:07:19COUNTY OR WHEREVER, THE LOCAL
COURTS WILL ALL BECOME THE
00:07:23AGENTS IN THE CLAIMS OF THE
CIRCUMSTANCE.
00:07:24YOU WILL FILE YOUR $25 FILING
FEE AND YOU START THE EXPEDITED
00:07:29TIME PERIOD.
A PERSON HAS TO FILE AN ANSWER
00:07:35WITHIN SEVEN DAYS AND THE
GOVERNMENT ENTITY HAS TO ANSWER
00:07:39WITHIN SEVEN DAYS, I MEAN, THAT
IS PRETTY QUICK, AND IN THE
00:07:43COURT OF CLAIMS WILL PROCESS
THIS AND THEIR MEDIATOR WILL
00:07:47CALL AND THEY WILL SPEAK WITH
YOU EITHER ON THE PHONE OR IN
00:07:49PERSON TO RESOLVE THE DISPUTE.
WE THINK MOST OF THE TIME, THAT
00:07:52IS GOING TO TAKE CARE OF IT.
THAT IS GOING TO TAKE YOUR OF
00:07:54IT.
IF IT DOESN'T, THEN THE SPECIAL
00:07:57MASTER WILL FIND A DISCUSSION IN
COURT.
00:08:03MOST OF MY TIME, I HEAR THAT THE
COURT ADOPTS THE SPECIAL
00:08:06MASTER'S FINDINGS.
KAREN: STATE AUDITOR DAVE YOST
00:08:07HAS A SIMILAR PROGRAM IN HIS
OFFICE, BUT FABER'S PROPOSAL
00:08:09WOULD PUT IT INTO LAW.
YOST SAYS THIS WILL HELP PEOPLE
00:08:10AVOID CONTENTIOUS LAWSUITS AND
BIG LEGAL BILLS.
00:08:12DAVE YOST: WHAT WE'VE GOT IN
OHIO TOO OFTEN IS ASYMMETRICAL
00:08:15WARFARE.
THE GOVERNMENT HAS THE LAWYERS
00:08:20AND THE ABILITY TO FIGHT WHEN
THEY DON'T WANT TO REVEAL
00:08:24SOMETHING THAT OUGHT TO BE
REVEALED UNDER THE LAW AND THE
00:08:27CITIZEN IS FORCED TO DIP INTO
THEIR OWN POCKETS.
00:08:29KAREN: FABER SAYS THE NEW
PROCESS, FROM START TO FINISH,
00:08:31SHOULD ONLY TAKE A MAXIMUM OF 45
DAYS.
00:08:37HE IS HOPING THE BILL WILL BE
SIGNED INTO LAW BY THE SUMMER
00:08:39RECESS.
FOR MORE THAN A YEAR, IT HAS
00:08:41BEEN LEGAL TO LIE IN A POLITICAL
AD CAMPAIGN.
00:08:44A 19-YEAR-OLD STATE LAW BANNING
FALSE STATEMENTS IN CAMPAIGNS
00:08:51WAS STRUCK DOWN BY THE U.S.
SUPREME COURT OUT OF A CASE FRO
00:08:53OHIO.
IT INVOLVED SUSAN B. ANTHONY
00:08:55LIST, AN ANTI-ABORTION GROUP
THAT WANTED TO RUN ADS AGAINST
00:08:57CONGRESSMAN STEVE DRIEHAUS, A
PRO-LIFE DEMOCRAT FROM
00:08:59CINCINNATI WHO WAS CHALLENGED IN
HIS 2010 RE-ELECTION BID BY
00:09:03REPUBLICAN STEVE CHABOT, WHO
DRIEHAUS HAD BEATEN TWO YEARS
00:09:05EARLIER.
THE GROUP WANTED TO BUY A
00:09:08BILLBOARD SAYING THAT SINCE
DRIEHAUS VOTED FOR THE
00:09:11AFFORDABLE CARE ACT, ALSO KNOWN
AS OBAMACARE, HE SUPPORTED
00:09:13TAXPAYER FUNDING FOR ABORTION.
DRIEHAUS SAID THAT WAS NOT AN
00:09:18OPINION, THAT WAS A LIE BASED ON
A COURT RULING AND AN EXECUTIVE
00:09:20ORDER, AND FILED A COMPLAINT
WITH THE OHIO ELECTIONS
00:09:22COMMISSION.
BUT THE SUSAN B. ANTHONY LIST
00:09:28SAID THE OHIO "FALSE STATEMENT"
LAW ALLOWED A
00:09:30POLITICALLY-APPOINTED GOVERNMENT
PANEL TO DETERMINE TRUE OR FALSE
00:09:33POLITICAL SPEECH, AND THAT THE
LAW PREVENTED CRITICS FROM
00:09:36FREELY EXERCISING THEIR FREE
SPEECH RIGHTS FOR FEAR OF
00:09:39PROSECUTION.
THE HIGH COURT EVENTUALLY RULED
00:09:42UNANIMOUSLY THAT THERE WAS A
CREDIBLE THREAT OF HARM TO FREE
00:09:44SPEECH RIGHTS IN THE ENFORCEMENT
OF THE LAW.
00:09:48SIMILAR LAWS EXISTED IN 15 OTHER
STATES.
00:09:51FAST FORWARD TO NOW, WHEN WE'RE
IN ONE OF THE MOST DIVISIVE
00:09:54PRESIDENTIAL CAMPAIGNS EVER,
WITH CANDIDATES ROUTINELY
00:09:56ACCUSING EACH OTHER OF LYING AND
FACT-CHECKING SITES WORKING
00:09:59OVERTIME TO KEEP UP WITH
CAMPAIGN CLAIMS.
00:10:03AND IT'S OFTEN HARD TO DECIPHER
FACTS FROM OPINIONS, AND TO
00:10:06DETERMINE WHAT THE TRUTH
ACTUALLY IS.
00:10:08AND SOME CANDIDATES REPORT THAT
HAS TRICKLED DOWN INTO THEIR
00:10:14STATE AND LOCAL RACES AS WELL.
SO WHAT DOES THE LOSS OF THIS
00:10:16LAW IN OHIO MEAN FOR THOSE WHO
ARE RUNNING FOR OFFICE NOW AND
00:10:19IN THE FUTURE?
I'M PLEASED TO WELCOME TWO OF
00:10:20THE BEST LEGAL MINDS I KNOW.
MARK WEAVER, A FORMER DEPUTY
00:10:23OHIO ATTORNEY GENERAL WHO
TEACHES LAW AT THE MORITZ
00:10:26COLLEGE OF LAW AT OHIO STATE
UNIVERSITY AND THE UNIVERSITY OF
00:10:28AKRON, AMONG HIS MANY
ACCOMPLISHMENTS, HE'S ALSO
00:10:36SERVED AS AN ADVISER TO MANY
REPUBLICAN CANDIDATES.
00:10:37NED FOLEY DIRECTS ELECTION LAW
AT MORITZ AT OHIO STATE'S LAW
00:10:39SCHOOL AND HAS WRITTEN SEVERAL
BOOKS AND ARTICLES ON THE TOPIC,
00:10:41INCLUDING THE 2014 BOOK
"ELECTION LAW AND LITIGATION:
00:10:43THE JUDICIAL REGULATION OF
POLITICS."
00:10:46HE'S ALSO A FELLOW WITH THE
STANFORD UNIVERSITY CENTER ON
00:10:50DEMOCRACY, DEVELOPMENT AND THE
RULE OF LAW, WORKING ON A
00:10:52PROJECT ABOUT ETHICS OF
ELECTORAL COMPETITION.
00:10:58WELCOME TO THE SHOW.
THANK YOU VERY MUCH FOR BEING
00:11:00HERE.
SO I WANTED TO START THIS OFF
00:11:02AND GET OUT OF THE WAY FIRST,
ARE YOU ADVISING ANYONE THIS
00:11:06YEAR, AND IF SO, WHAT ARE YOU
TELLING THEM ABOUT LYING IN
00:11:09POLITICAL CAMPAIGNS?
>> THE FIRST YEAR I DID IT,
00:11:14TWICE I'D YEARS AGO, I SAY THE
SAME THING I TELL THEM NOW,
00:11:17"TELL THE TRUTH."
BUT THE IMPORTANT THING TO KNOW
00:11:22IN THE HEAT OF THE CAMPAIGN IS
THAT THEY THINK IT IS A LIE
00:11:25BECAUSE THERE ARE SHADES OF GRAY
AS TO WHAT ONE PARTICULAR BILL
00:11:29MEANS, AND SO IT USED TO BE THAT
YOU COULD TAKE YOUR OPPONENT TO
00:11:33WHAT WE WOULD CALL THE OHIO
ELECTIONS COMMISSION, A STATE
00:11:37REGULATORY BODY, AND THEY COULD
SORT OUT WHETHER IT WAS TRUE OR
00:11:41FALSE, BUT GIVEN THE SUPREME
COURT RULING, THAT OPTION IS NOT
00:11:44THERE.
MY ADVICE IS THAT THE ULTIMATE
00:11:48ARBITER THAT REMAINS IS THE
VOTER, IT IS THE VOTER'S JOB TO
00:11:51SOMEONE AT WHAT IS TRUE WITH THE
HELP OF JOURNALISTS.
00:11:53KAREN: NED, WHAT IS TO STOP A
PERSON FROM LYING IN A CAMPAIGN
00:11:58AD NOW?
IF THIS LAW IS STRUCK DOWN, WHAT
00:12:00IS TO PREVENT THEM?
NED: BESIDES CRIMINAL
00:12:05PROSECUTION, THERE ARE OPTIONS
THAT EXIST, AND I THINK THE KIND
00:12:08OF LIES WE CAN TALK ABOUT ARE
THE MOST PERNICIOUS ONES.
00:12:12THE FREE SPEECH PRINCIPLE THAT
PREVAILS HERE THAT THE COURT
00:12:17RELIED ON, WHICH IS IMPORTANT,
IS THAT THE TEST REMEDY FOR
00:12:21FALSE SPEECH IS TRUE SPEECH, OR
WHAT LAWYERS CALL COUNTER SPEECH
00:12:25.
SO IF YOU OBJECT TO WHAT THE
00:12:28OTHER SIDE IS SAYING ABOUT YOU,
REBUT IT, AND THAT REBUTTAL IS
00:12:32WHAT FREE SPEECH IS ALL ABOUT,
SO AS LONG AS THERE IS ROOM FOR
00:12:36REBUTTAL IN A ROBUST POLITICAL
CAMPAIGN, THE COURTS WANT TO
00:12:40SAY, LET THAT FREE MARKETPLACE
OF IDEAS WORK, KEEP THE
00:12:43GOVERNMENT OUT OF RATE WOULD
WORRY BUSINESS OF WHAT IS TRUE
00:12:46AND WHAT IS FALSE.
WE DON'T WANT THE GOVERNMENT TO
00:12:48BE AN UMPIRE.
A PROBLEM EXISTS WHEN YOU HAVE A
00:13:04DELIBERATE LIE AMBUSHING AN
ELECTION 24 HOURS BEFORE THE
00:13:06POLLS CLOSE KIND OF THING, AND
IF THAT HAPPENS, THAT WE CAN
00:13:07TALK ABOUT WHAT OTHER POSSIBLE
REMEDIES MIGHT EXIST.
00:13:09IT MIGHT DEPEND ON WHAT KIND OF
RACE IT IS.
00:13:10CANDIDATES MIGHT BE SUBJECTED TO
GREATER RESTATES -- GREATER
00:13:17RESTRAINTS.
YES, THIS LAW WAS INVALIDATED,
00:13:19BUT IT DOESN'T MEAN THAT THE
ENTIRE LEGAL SYSTEM IS CRUMBLY.
00:13:21KAREN: LIKE WHEN YOU LOOK AT
ADS, THAT ENFORCES TRUTH IN
00:13:29ADVERTISING LAWS, SO WHY
SHOULDN'T THERE BE SOMETHING
00:13:31ENFORCING TRUTH IN ADVERTISING
IN POLITICAL CAMPAIGNS?
00:13:33MARK: OF ALL OF THE KINDS OF
SPEECH UP THERE, THE ONE THAT
00:13:40THE FIRST AMENDMENT PROTECTS THE
MOST IS POLITICAL SPEECH.
00:13:41THIS SHOULD BE AROUND OUR
COUNTRY AND AROUND OUR STATE.
00:13:46COMMERCIAL SPEECH, WHETHER YOU
SHOULD BUY THIS GRAND OF COLA OR
00:13:50THIS BRAND OF CAR, IS DIFFERENT
THAN POLITICAL SPEECH.
00:13:53THIS DECISION BY THE SUPREME
COURT IS NOT JUST AFFECTING THIS
00:13:59AREA, IT IS TALKING ABOUT THE
HATEFUL PEOPLE WHO PROTEST THOSE
00:14:04FUNERALS AND THOSE VETERANS, THE
SUPREME COURT HAS SAID THAT THEY
00:14:07ARE ACTING WITHIN THEIR FREE
SPEECH RIGHTS.
00:14:09IT ALSO SAYS THAT SOMEONE WHO
GOES TO AN ARMY OR NAVY
00:14:16STORE AND GET THE MEDAL, THE
SUPREME COURT SAYS THERE CANNOT
00:14:20BE A CRIMINAL PENALTY FOR THEM
DOING THAT.
00:14:22THIS IS AN OUTLIER DECISION FOR
THE COURT.
00:14:25THEY HAVE PROTECTED FREE SPEECH
IN MANY RESPECTS.
00:14:26KAREN: WHAT ABOUT THE IDEA OF A
LIBEL?
00:14:28NED, YOU WERE TALKING ABOUT THAT
KIND OF LIE.
00:14:33THE DECISION FOLLOWING THE SUSAN
B ANTHONY LIST IS THAT "A
00:14:39POLITICAL CANDIDATE WITH A
MAINSTREAM POLITICAL DECISION
00:14:42CAN NOT HAVE POLITICAL DEFINI
--DEFAMATION."
00:14:49NED: IT MIGHT NOT REALLY INJURE
THEIR REPUTATION.
00:14:53TO SAY TO SOMEONE, IF THEY
FALSELY HIT 400 HOME RUNS IN SET
00:15:01OF 300 HOME RUNS, IT COULD
IMPROVE THE REPUTATION BECAUSE
00:15:02IT IS FALSE.
KAREN: BUT WHAT ABOUT SAYING
00:15:05THAT SOMEBODY IS A PRO-LIFE
DEMOCRAT RUNNING IN A PRO-LIFE
00:15:10DISTRICT WHO IS NOT?
NED: THERE ARE REALLY UGLY
00:15:15THINGS YOU COULD SAY ABOUT
SOMEBODY THAT WE WOULD ALL SAY,
00:15:17IF A VOTER BELIEVED THAT TO BE
TRUE, THAT WOULD BE, IT WOULD GO
00:15:21TO THE VERY ESSENCE OF THEIR
CHARACTER, WHAT IF IT IS JUST
00:15:29ABOUT POLICY, I MEAN, EVEN IF
YOU ARE INTENSELY PRO-LIFE AND
00:15:30THE OTHER SIDE IS PRO-CHOICE,
EVEN IF YOU REALLY DON'T BELIEVE
00:15:32SOMEONE IS A MALIGNANT,
MALICIOUS HUMAN BEING, IF THEY
00:15:36WERE A MURDERER OR UP BANK
ROBBER, THAT IS A LITTLE BIT
00:15:40DIFFERENT.
SO LIBEL LAW IS FOR THOSE
00:15:42EXCEPTIONALLY EGREGIOUS
FALSEHOODS.
00:15:43MARK: YOU TALKED ABOUT HITTING A
HOME RUNS BETWEEN 300 AND 400,
00:15:51BUT THE LIBEL COMMISSION HEARD A
FALSE STATEMENT CASE YEARS AGO
00:15:55ABOUT WHETHER A CANDIDATE FOR
CONGRESS ACHIEVED A CERTAIN TIME
00:15:57IN A MARATHON THAT SHE WAS
RUNNING, HER NAME WAS JEAN
00:16:00SCHMIDT, A CONGRESSWOMAN, AND
THEY HAD SEVERAL HOURS OF
00:16:04TESTIMONY WITH PHOTOS AND PHOTO
EXPERTS EXAMINING WHEN SHE
00:16:07CROSSED THE FINISH LINE BECAUSE
HER OPPONENT SAID SHE WAS MAKING
00:16:11FALSE STATEMENTS ABOUT HER TIME
IN THAT MARATHON.
00:16:13THAT IS THE LEVEL TO WHICH
GOVERNMENT REGULATION OF
00:16:15CAMPAIGNS SPEECH HAS GONE.
KAREN: BUT MANY PEOPLE SAY THAT
00:16:22THAT COULD BE ANY DESCRIPTION OF
HER CHARACTER, IF SHE IS WILLING
00:16:25TO LIE ABOUT THAT THING, THEN
SHE IS WILLING TO LIE ABOUT
00:16:27OTHER THINGS.
MARK: THAT IS TO LOOK INTO THE
00:16:31FACTS AND TO DO YOUR OWN
RESEARCH AND ALLOWING A
00:16:34POLITICALLY APPOINTED PANEL OF
SEVEN PEOPLE, ALL OF WHOM HAVE
00:16:38POLITICAL TIES OF THEIR OWN IN
ONE WAY OR ANOTHER, THERE ARE
00:16:42THREE REPUBLICANS AND THREE
DEMOCRATS AND ONE INDEPENDENT
00:16:44CHOSEN BY THE DEMOCRATS AND THE
REPUBLICANS, ALLOWING TO DO IT
00:16:47FOR YOU, I WOULD SUGGEST IT IS
SHIRKING YOUR RESPONSIBILITY AS
00:16:50A CITIZEN.
KAREN: NOW I WANT TO TALK TO
00:16:53NED, YOU TALKED ABOUT OTHER
OPTIONS THAT CANDIDATES HAVE
00:16:58OTHER THAN REBUTTAL.
I MEAN, REBUTTAL MAY NOT GET
00:17:02THE ATTENTION THAT THE OTHER AND
GOT.
00:17:03HOW DO THEY DEAL WITH BEING
WRONGLY ACCUSED IN A POLITICAL
00:17:07CAMPAIGN?
NED: IN THIS ELECTION, FOR
00:17:11EXAMPLE, I THINK ANY JUDICIAL
CANDIDATE WHO DELIBERATELY LIES
00:17:15ABOUT THEMSELVES OR THEIR
OPPONENT WOULD BE UNFIT TO SERVE
00:17:16AS JUDGE.
AND TO BE A JUDGE REQUIRES YOU
00:17:20TO JUMP THROUGH SOME HOOPS.
KAREN: THIS COULD DETERMINE IF
00:17:24THEY ARE UNFIT.
NED: THERE ARE A BODY OF RULES
00:17:28FOR DECIDING IF A JUDGE IS
COMMITTING BAD BEHAVIOR.
00:17:32IF A JUDICIAL CANDIDATE LIED TO
GET THAT OFFICE, THEY COULD BE
00:17:36LATER ON REMOVED FROM THE
JUDGESHIP OR IT IF IT IS BETWEEN
00:17:43ELECTION DAY AND JANUARY WHERE
THEY ARE SUPPOSED TO SERVE, THE
00:17:46SUPREME COURT COULD SAY, "YOU
LACK THE JUDICIAL CHARACTER TO
00:17:48SERVE IN THIS OFFICE."
AGAIN, IT IS NOT CRIMINAL
00:17:53PROSECUTION, IT IS NOT PUTTING
SOMEONE IN JAIL, BUT WHAT YOU
00:17:57DID IN THE CAMPAIGN IS
INCOMPATIBLE WITH YOUR SERVICE.
00:17:58THE U.S. SUPREME, EXCUSE ME, THE
U.S. SENATE ACTUALLY DID THIS
00:18:04BACK IN THE 1920'S.
THERE WAS A REPUBLICAN PRIMARY
00:18:08IN 1924 AND IT WAS SO UGLY AND
THAT IT CARRIED OVER INTO THE
00:18:14GENERAL ELECTION THAT IF THE
CANDIDATE HAD ONE BY 100,000
00:18:17VOTES THAT THE REPUBLICANS IN
THE U.S. SENATE SAID THAT THE
00:18:22WAY IN WHICH THEIR OWN CANDIDATE
SORT OF JUST DEMEANED THE OFFICE
00:18:27SO BADLY, THEY REFUSED TO SIT
HIM IN THE BODY OF THE U.S.
00:18:30SENATE BECAUSE HE WAS NOT WORTHY
OF THE OFFICE.
00:18:32AND WHEN I FIRST READ THAT
DECISION, I THOUGHT, THE U.S.
00:18:37SENATE IS NOT A PRIVATE CLUB,
THEY CAN'T BLACK BALL SOMEBODY,
00:18:42ESPECIALLY IF THEY ARE NOT UP TO
STANDARDS, BUT IF YOU ARE IN A
00:18:45SITUATION WHERE THERE IS PERJURY
OR THERE IS SOME ACT OF
00:18:48DESPERATION THEN AT THE U.S.
SENATE CAN SAY, WE DON'T PUT YOU
00:18:54IN JAIL, BUT WE ALSO DON'T WANT
TO SIT YOU IN THE U.S. SENATE.
00:18:55KAREN: IS THERE ANY MECHANISM
LIKE THAT IN THE STATE HOUSE?
00:18:57NED: ABSOLUTELY, BOTH HOUSES AT
THE STATE LEGISLATURE ARE JUDGED
00:19:04ON THE QUALIFICATIONS, RETURNS,
AND ELECTIONS OF THEIR OWN
00:19:06MEMBERS, AND SO IF THE OHIO
SENATE OR THE OHIO HOUSE SAID
00:19:11THAT THERE WAS A WAY IN WHICH
SOMEBODY ATTEMPTED TO SECURE
00:19:14OFFICE WAS SO EGREGIOUS, I MEAN,
IT WOULD HAVE TO BE AN EXTREMELY
00:19:18EGREGIOUS CASE, IT WOULD HAVE TO
BE THAT LAST-MINUTE LIE, IT
00:19:21WOULD NOT HAVE TO BE THE KIND OF
LIE THAT WAS A HURLY-BURLY KIND
00:19:25OF ROBUST CAMPAIGN,, I DON'T
THINK THEY HAVE THAT KIND OF
00:19:29POWER TO EXCLUDE SOMEBODY FROM
THE CHAMBER, BUT IT DOES MEAN
00:19:32THAT AS WE WORRY ABOUT HOW LOW
CAN IT GO IN THIS IN TERMS OF
00:19:38ADS, IF IT GETS SO LOW, THERE
ARE SAFETY VALVES IN OUR SYSTEM.
00:19:54MARK: ONE THING THAT WE SHOULD
LOOK TO FOR PASS IS THAT
00:19:56CURRENTLY, YOU CANNOT LIE IN THE
JUDICIAL CAMPAIGN.
00:19:57IT IS A VIOLATION IN THE CODE OF
JUDICIAL CONDUCT.
00:19:58KAREN: THAT IS NOT NECESSARILY A
STATE LAW?
00:19:59MARK: THAT IS A RULE PUT FORWARD
BY THE SUPREME COURT.
00:20:00BUT THE DECISION IS EVEN FASTER
THAN NED MENTIONED.
00:20:05THERE WAS A FALSE STATION -- SA.
MARK:
00:20:08STATEMENT AND WE WERE ABLE TO
HAVE THE PERSON REPRIMANDED AND
00:20:13FIND EVEN BEFORE THE ELECTION
AND EVEN WITH THE RESULTING
00:20:21PRESS AROUND IT, HE WAS
DEFEATED.
00:20:22THE COURT HAS AMENDED THAT AND
NOW YOU CAN'T MAKE A FALSE
00:20:26STATEMENT AND THEY GIVE UP THE
VAST PROCESS THAT CAN GO BEFORE
00:20:30THE ELECTION.
KAREN: SOME PEOPLE MIGHT WONDER
00:20:32WHY THAT DOESN'T EXIST FOR STATE
LAWMAKERS?
00:20:33MARK: THE ANSWER, OF COURSE, IS
THAT POLITICAL SPEECH HAS TO BE
00:20:39UNENCUMBERED.
SO IF THE SUPREME COURT HAS SAID
00:20:43YOU CAN ALREADY WEAR A MEDAL OF
HONOR THAT YOU HAVEN'T BURNED,
00:20:47NOT THAT I AGREE WITH THAT, IF
THEY SAY YOU CAN'T BE PENALIZED
00:20:50FOR THAT, REMEMBER, THE
PENALIZATION WAS ABOUT SIX
00:20:55MONTHS IN JAIL AND A $1000 FINE
AND WE HAVE NOT SEEN ANYBODY
00:21:02TAKEN INTO PROSECUTION LIKE
THAT.
00:21:03SO I THINK WHAT THE SUPREME
COURT REACTED TO THAT IS SUCH A
00:21:08PERNICIOUS PENALTY FOR FREE
SPEECH AND I THINK IT IS
00:21:10TROUBLESOME.
NED: CAN I JUST JUMP IN ON THAT
00:21:11POINT?
KAREN: ABSOLUTELY.
00:21:13NED: WHAT THE U.S. SUPREME COURT
WAS DOING IN THAT MEDAL OF HONOR
00:21:19CASE AND WHAT THEY WERE DOING
WITH RESPECT TO THE OHIO STATUTE
00:21:22IS SAYING THAT THIS STATUTE IS
TOO BROAD RELATIVE TO A
00:21:26LEGITIMATE PROBLEM.
IT CRIMINALIZES TOO MUCH SPEECH
00:21:28AND PUTS TOO GREAT A PENALTY.
IF YOU, THE LEGISLATURE, COMES
00:21:34BACK WITH THE MORE NARROWER
STATUTE JUST ON THE REAL, REAL
00:21:40PROBLEM, WE WILL TAKE ANOTHER
LOOK AT IT.
00:21:42SO THAT ISN'T A LICENSE TO LIE
NO MATTER WHAT.
00:21:44IT IS AN OBLIGATION ON THE
GOVERNMENT TO USE ITS POWERS OF
00:21:47REGULATION IN A SURGICAL STRIKE
KIND OF WAY AS OPPOSED TO A
00:21:52BLUNDER BUST KIND OF WAY.
MARK: I AGREE.
00:21:54KAREN: AND YOU SAY THAT THE
VOTERS GET TO DECIDE, THAT HAS
00:22:00BEEN YOUR RULING THROUGHOUT
THIS, RIGHT?
00:22:01MARK: YES.
KAREN: HOW TO THE VOTERS GET TO
00:22:06DECIDE IF THEY ARE GIVEN AND
IMPARTED WITH INFORMATION THAT
00:22:08MAY OR MAY NOT BE TRUE?
MARK: I READ IN THE "CINCINNATI
00:22:12INQUIRER" THAT NOWADAYS WITH THE
INTERNET AND WITH FACT CHECKS BY
00:22:19NEWS ORGANIZATIONS, VOTERS HAVE
MORE RESOURCES THAN THEY HAVE
00:22:22EVER HAD BEFORE TO FIND OUT WHAT
IS TRUE AND WHAT IS NOT TRUE.
00:22:24KAREN: THEY HAVE MORE
INFORMATION TO SHOW YOU WHAT IS
00:22:28FALSE.
MARK: DEMOCRACY REQUIRES
00:22:30VIGILANCE AND BEING A CITIZEN
REQUIRES NOT JUST SHOWING UP ON
00:22:34ELECTION DAY AND GUESSING THE
NAMES YOU KNOW ON THE BALLOT.
00:22:38IT IS DOING YOUR HOMEWORK AND
THIS DECISION SUGGESTS THAT
00:22:41PEOPLE SHOULD DO THEIR HOMEWORK.
KAREN: AND NED, I WANT TO ASK
00:22:45YOU ABOUT WHEN PEOPLE FILED
BRIEFS IN THIS CASE, THIS IS ALL
00:22:48OVER THE PLACE, YOU HAVE THE
ACLU, THE CATO IS A TOO, WHICH
00:22:52IS PRETTY CONSERVATIVE, THE
CHRISTIAN MEDIA SOCIETY, AND
00:22:56ANOTHER ORGANIZATION THAT
REPRESENTS A MUSIC PRODUCERS AND
00:22:58MOVIE PRODUCERS, I MEAN, THIS
WAS ALL OVER THE PLACE, THERE
00:23:01WERE A LOT OF PEOPLE WHO WERE
CONCERNED ABOUT WHAT THE EFFECTS
00:23:04THAT THIS LAW HAD ON THE BROADER
FREE SPEECH RIGHTS OF EVERYONE.
00:23:07NED: THE PUBLIC DISCOURSE,
RIGHT?
00:23:09I THINK THAT IS RIGHT.
DEMOCRACY IS MESSY.
00:23:14IT IS NOT GOING TO BE PRISTINE,
IT IS NOT GOING TO BE ABSOLUTELY
00:23:18PERFECT.
I DO THINK THAT THE FACT CHECKED
00:23:20ENTITIES THAT ARE OUT THERE DOES
ADD TO THE VOTERS.
00:23:23YOU CAN GO TO FACTCHECK.ORG OR
POLITIFACT.ORG.
00:23:31YOU CAN GO TO BOTH SIDES.
THE FACT THAT POLITICS IS A
00:23:37COMPETITIVE SPORT DOES HELP IN
THIS REGARD.
00:23:39AND AGAIN, WE HAVE TO ASK
WHETHER OR NOT THE CURE WOULD BE
00:23:46WORSE THAN THE DISEASE.
WE DON'T WANT FALSEHOODS.
00:23:49WE DON'T WANT LIES.
WE HAVE ALL SAID THAT.
00:23:52BUT YOU HAVE TO ASK, WHO GETS
THE POWER TO DECLARE SOMETHING
00:23:54THAT IS TRUE OR FALSE?
WHAT I MIGHT THINK IS TRUE OR
00:23:58FALSE MIGHT BE SOMETHING THAT
YOU MIGHT THINK IS TRUE OR FALSE
00:24:00OR WHAT ANOTHER PERSON MIGHT
THINK, SO WHO IS GOING TO HAVE
00:24:03THAT ULTIMATE POWER AND WHAT IS
THE NATURE OF THAT POWER?
00:24:05IS THE NATURE OF THE POWER TO
SAY YOU WERE GOING TO GO TO JAIL
00:24:09OR BE ABLE TO SAY THAT SOMETHING
WENT WRONG WITH OUR ELECTORAL
00:24:12SYSTEM AND WE HAVE TO FIX THE
ELECTION AS OPPOSED TO USING
00:24:14CRIMINAL LAW?
KAREN: THE BOTTOM LINE WITH 19
00:24:17YEARS OF THIS LOBBYING IN
EFFECT, IT IS NOW GONE.
00:24:21IS IT BETTER WITHOUT THE LAW?
MARK: I EXCEPT, I MEAN, I HAVE
00:24:27LITIGATED CASES IN THIS AND I
DON'T KNOW IF THEY EVER MADE ANY
00:24:30SORT OF OUTCOME IN ANY SORT OF
ELECTION THAT WAS INVOLVED.
00:24:34I HAVE A FOUR-DAY HEARING ON A
FALSE STATEMENT IS OVER THERE, I
00:24:37HAD THE FINAL ONE BEFORE THE LAW
WAS STRUCK, SO I DID A LOT OF
00:24:41THEM, AND I CAN'T TELL YOU THAT
ANYONE EVER CHANGE THE OUTCOME
00:24:44OF ANY OF THE ELECTIONS
INVOLVED.
00:24:45NED: NEW ZEALAND, FOR EXAMPLE,
HAS A LOG THAT SAYS IF YOU DO A
00:24:51FALSEHOOD WITHIN 24 HOURS OF AN
ELECTION DAY, THEY ARE GOING TO
00:24:54LOOK AT THAT DIFFERENTLY THAN IF
IT HAPPENED AHEAD OF TIME.
00:24:58SO I COULD SAY WE COULD LOOK
AROUND THE WORLD AT OTHER
00:24:59DEMOCRACIES, YOU KNOW, GREAT
BRITAIN HAS SOME INTERESTING
00:25:04LAWS, NEW ZEALAND, AUSTRALIA, SO
WE DIDN'T HAVE A PERFECT LAW,
00:25:08BUT WE ARE BETTER OFF WITHOUT
THE LAW THAT WE HAD, BUT THERE
00:25:10ARE OTHER LAWS OUT THERE THAT
COULD BE A BETTER REPLACEMENT
00:25:12AND IT COULD WORK FOR US.
KAREN: AND THAT'S IT FOR THIS
00:25:17WEEK.
FOR MY COLLEAGUES AT OHIO PUBLIC
00:25:18RADIO AND TELEVISION, THANKS FOR
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Note : Transcripts are compiled from uncorrected captions