BY SANDY THEIS
Enquirer Columbus Bureau
COLUMBUS -- Bob Taft's campaign for governor is headed to court today, seeking to overturn a Franklin County judge's unprecedented order that has, at least for now, blocked the candidate from airing his latest campaign commercial.
Judge John Connor of Franklin County Common Pleas Court, acting on a complaint by Democratic candidate Lee Fisher, granted a temporary restraining order Friday evening and scheduled a full hearing on the matter for Tuesday.
The ad uses a partial quote from a newspaper article to state that Mr. Taft did not raise taxes as a Hamilton County commissioner. "There is no question in my mind the ad is misleading," Judge Connor said before issuing the order.
Taft campaign manager Brian Hicks said the campaign will ask the Ohio Supreme Court today to force Judge Connor to step down from the case because his campaign committee bought a $125 ticket to a Fisher fund-raiser.
The campaign will also ask the supreme court, or a federal court, to block the judge's order.
"We are reviewing our legal options to decide the best route," Mr. Hicks said Sunday. "This is fundamentally a prior restraint of Bob Taft and the Taft campaign's free speech."
"Are they talking about the First Amendment right to lie?" asked Fisher campaign manager Alan Melamed. "The Taft campaign's approach to politics is to say and do anything you need to say or do to win, without regard to the truth."
A noted First Amendment expert said the truth of the ads isn't the issue.
"The First Amendment protects political speech, and if it (the Taft commercial) is wrong, it can be corrected by more speech -- the Fisher campaign can run commercials explaining why these commercials are false," said David Goldberger, an Ohio State University professor of constitutional law.
"They (Fisher campaign attorneys) did what they thought they had to do," Mr. Goldberger said. "The real error of judgment here was from the judge. It is my hunch that the judge simply did not understand the applicable law."
Judge Connor could not be reached for comment.
To Mr. Fisher's campaign, the case is about fraud.
In the disputed ad, Mr. Taft attacks Mr. Fisher's plan to cut property taxes by $1.1 billion over two years. It rebuts a claim in a Fisher ad that Hamilton County's property taxes were raised 46 percent during the time Mr. Taft served as a county commissioner.
Mr. Fisher asserts that the ad intentionally misleads voters by using an incomplete quote from a newspaper article published in the Cleveland Plain Dealer.
The article analyzed a Taft campaign commercial's portrayal of Mr. Fisher as a liberal with a long history of raising taxes. Although the article questioned the accuracy or completeness of the Taft commercial's claims, voters are led to believe that the newspaper article defended Mr. Taft.
The Taft ad says that Mr. Taft "never raised property taxes." As the Plain Dealer's front page is displayed, the announcer says, "Says right on the front page of the Plain Dealer, "Taft didn't raise the taxes.' "
The ad leaves out words at the beginning and end of the sentence, which read: "But Taft didn't raise the taxes himself." The article explains that Mr. Taft voted to put 14 property taxes on the ballot. He campaigned for some of them. Voters approved 13 of the 14.
"The misuse of that quote set up the whole message of the ad," Mr. Melamed said, "the message that Lee Fisher's characterizations of Bob Taft are false."
Mr. Hicks doesn't see it that way.
He argues the quote from the Plain Dealer is used properly, and said Mr. Fisher is the one trying to mislead voters.
By running an ad that says "property taxes were raised 46 percent" during Mr. Taft's days as a county commissioner, Mr. Fisher is leaving voters with the false impression that Mr. Taft is personally responsible for the tax hikes, Mr. Hicks said.
Mr. Taft didn't raise them; he simply put them on the ballot.
"Even Lee Fisher should be able to see the difference," he said.
Mr. Fisher's attorney, Jennifer Brunner, took the unusual step of arguing that the Taft commercial constitutes common-law fraud.
Normally, such disputes are billed as violations of Ohio's election laws, and are decided by an administrative panel known as the Ohio Elections Commission (OEC.)
Had the campaign filed with the OEC, the matter probably would have taken nearly two weeks to be resolved, Ms. Brunner explained.
"By then, the damage could have been irreparable," she said. "We felt we had no other real choice."
She conceded that the First Amendment especially protects political speech and even conceded that the campaign could very well lose on appeal.
In addition to fighting in a court of law, the Fisher campaign is waging a tandem fight in the court of public opinion, hoping that some authority will sanction Mr. Taft for what Ms. Brunner called commercials that are "misleading or just plain false."
Such a sanction would almost assuredly show up in a Fisher campaign commercial.
On Friday, the elections commission will hold a hearing on a separate Taft commercial that the Fisher campaign also is disputing. The case centers mainly on the Taft campaign's characterization of Mr. Fisher's record as Ohio attorney general.
Polls show Mr. Taft with a lead over Mr. Fisher in what will become the most expensive campaign for governor in Ohio history. Both sides have already raised more than $16 million.
