Can Lawyers Speak out of Both Sides of Their Mouths?

Americans dread campaign season for one main reason – we hate campaign ads! They are dirty, sleazy, and those are just the disclaimers! Some states passed laws aimed to curb lying in politics, generally called “false campaign speech laws”. Apparently goals like world peace and convincing MIley Cyrus to dress modestly were just too easily attainable. Ohio is one such state, and on their books are Ohio’s false statement laws.

But while these laws strive at a real good – the elimination of lying scandals from the hallowed seats of government – they have a slight drawback in that they trample on a little thing we call free speech. These laws created a system where political adversaries can tie up a politician at the last minute of a campaign by alleging that the opponent lied, forcing the opponent to defend against the accusation in a hurried hearing. And then before any real finding of truth can be ascertained, the local media will report about the opponent’s alleged lies. So if you are keeping score, this means that people can lie by using a system designed to find out if a person lied! And worse yet, it is free last-minute campaigning by a political adversary!

Two groups called the Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes filed suit against the Ohio Elections Commission and others, challenging the constitutionality of Ohio’s false campaign speech laws.

Now it is generally the Attorney General’s duty is to defend the law in court. As former U.S. Solicitor General Waxman put it, “when an Act of Congress has been challenged, the Solicitor General ordinarily puts a heavy thumb on the scale” in favor of defending the statute. But apparently, that thumb is not full of lead, as there are times when the law is so blatantly unconstitutional that the AG can’t defend it.

Such was the dilemma for the Ohio AG in Susan B. Anthony List v. Driehas, currently before the US Supreme Court. How could he perform his job of defending the laws of the state when he thought the laws were blatantly unconstitutional?

Apparently, lawyers are a lot like politicians, and can speak out of both sides of the mouth. While the AG filed a brief defending the constitutionality of the law, he also filed an amicus brief questioning the constitutionality of the law. He told the Court “as Attorney General, [I have] a special duty, as an officer of the Court and representative of the public, to acknowledge when the government’s side might be wrong.”

“Thus, the Ohio AG argued both for the law…and against the law. This is something you should never try to do at home. Your spouse will not be as understanding as the Supreme Court if you choose to utilize both sides of your mouth. This should only be left to the professionals. If you want to learn more about the workings of the Supreme Court, attend a Comedian at Law CLE near you.”

Comedian of Law offers continuing legal education that educates and entertains! We offer live and online CLE classes.  John Cleese, of Monty Python fame, said, “he who laughs most learns best!”  We offer state specific bundles for attorneys that include online only classes, live classes, and a combo live-online CLE bundle.  Check them out today!

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