Plunderbund Media L.L.C. v. DeWine et al

Filing 23

Memorandum Opinion: The Court finds that plaintiffs lack standing under Article III to assert their claims with respect to Ohio Rev. Code § 2917.21(B)(2). In the absence of standing, the Court lacks subject matter jurisdiction over this case. Accordingly, defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is granted. This case is dismissed and closed. (Related Doc. No. 19 ). Judge Sara Lioi on 2/28/2018. (T,Je)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PLUNDERBUND MEDIA L.L.C., et al.,
PLAINTIFFS,
vs.
OHIO ATTORNEY GENERAL MIKE
DEWINE, et al.,
DEFENDANTS.

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CASE NO. 5:17-cv-1027
JUDGE SARA LIOI

MEMORANDUM OPINION

This matter is before the Court on the motion of defendants Mike DeWine (in his official
capacity as Ohio Attorney General), Victor Vigluicci (in his official capacity as the prosecuting
attorney for Portage County, Ohio), and Ron O’Brien (in his official capacity as the prosecuting
attorney for Franklin County, Ohio) (collectively “defendants”) to dismiss the complaint of
plaintiffs Plunderbund Media L.L.C. (“Plunderbund”), John Michael Spinelli (“Spinelli”), and the
Portage County Tea Party, Inc. (“Tea Party”) (collectively “plaintiffs”). (Doc. No. 19 (“Mot.”).)
Plaintiffs opposed the motion (Doc. No. 20 (“Opp’n”), and defendants filed a reply (Doc. No. 22
(“Reply”). For the reasons that follow, defendants’ motion is granted.
I. BACKGROUND
According to the complaint, plaintiffs publish and engage in “provocative” constitutionally
protected speech “online” regarding local, state, and national politics. (Doc. No. 1 (“Compl.”) ¶¶
1, 4, 5, 6.) Plaintiffs allege that Ohio Rev. Code § 2917.21(B)(2) violates the First and Fourteenth
Amendments to the United States Constitution because it criminalizes constitutionally protected
political expression on the internet. (Id. ¶ 2.) Section 2917.21(B)(2) provides that:

No person shall knowingly post a text or audio statement or an image on an internet
web site or web page for the purpose of abusing, threatening, or harassing another
person.
Plaintiffs allege that defendants are authorized to enforce the statute (Compl. ¶¶ 7, 8, 9),
and they are at risk of criminal prosecution if police or prosecutors believe that plaintiffs’ online
political expression is abusive or harassing1 because the statutory exemption for mainstream
media2 does not apply to plaintiffs (id. ¶¶ 14-19). Violation of § 2917.21(B) is a first degree
misdemeanor for the first offense, and a fifth degree felony for each subsequent offense. See §
2917.21(C)(2); Compl. ¶ 20, citing 2917.21(C)(2).
In count one, plaintiffs allege that the statute restricts the content of speech and seek a
declaration that § 2917.21(B)(2) is unconstitutionally overbroad. (Compl. ¶¶ 21-28.) In count two,
plaintiffs claim that they have been chilled in the exercise of their right to engage in political speech
under the First Amendment because of fear of prosecution and, unless § 2917.21(B)(2) is declared
unconstitutional and its enforcement enjoined, plaintiffs will be irreparably harmed. (Id. ¶¶ 29-35.)
Plaintiffs also allege that Ohio Rev. Code § 2917.21(B)(1) is unconstitutional to the extent
that it prohibits abusing and harassing speech about a person, rather than directed to a person (id.
¶ 3), and to the extent that (B)(1) prohibits online expression for the purpose of abuse or harassment

1

 Plaintiffs contest the constitutionality of the statute’s prohibition against abuse and harassment, but do not contest
the prohibition against threats. (Compl. ¶ 2.)

2

 Ohio Rev. Code § 2917.21, provides, in relevant part:
(F) Divisions (A)(5) to (11) and (B)(2) of this section do not apply to a person who, while employed
or contracted by a newspaper, magazine, press association, news agency, news wire service, cable
channel or cable operator, or radio or television station, is gathering, processing, transmitting,
compiling, editing, or disseminating information for the general public within the scope of the
person's employment in that capacity or the person's contractual authority in that capacity.

2 

(id. at ¶ 18). Plaintiffs do not assert any count with respect to § 2917.21(B)(1) but, in their prayer,
seek the same relief as for § 2917.21(B)(2). (See id. at 8-9.3)
On the same day that plaintiffs filed their complaint, they also filed a motion for a
preliminary injunction. (Doc. No. 2.) The Court conducted a telephonic conference to discuss the
motion, and the parties agreed that defendants’ anticipated motion to dismiss should be resolved
before the Court addressed the motion for injunctive relief. (See Minute Order and Order dated
June 12, 2017.) The parties briefed defendants’ motion to dismiss in accordance with the schedule
established by the Court, and the motion is ripe for decision.
II. DISCUSSION
A. Fed. R. Civ. P. 12(b)(1)
Defendants bring their motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction.4 Defendants contend that plaintiffs lack constitutional standing to bring
this case because: (1) their allegations concerning prosecution under the statute are speculative,
(2) Ohio courts have never interpreted the language in the statute to reach political speech or
criticism of government officials, and (3) their subjectively chilled speech is insufficient to
establish standing. (Mot. at 104.)

3

 All page number references are to the page identification numbers generated by the Court’s electronic filing system.

4

  Defendants also move for dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be
granted. Because plaintiffs lacks standing, the Court lacks subject matter jurisdiction over the case and, thus, does not
address defendants’ motion with respect to Rule 12(b)(6).
3 

Article III standing is an issue of subject matter jurisdiction properly decided under
12(b)(1).5 Am. BioCare Inc. v. Howard & Howard Attorneys PLLC, 702 F. App’x 416, 419 (6th
Cir. 2017) (citation omitted); Beck v. FCA US LLC, No. 17-cv-10267, --F.Supp.3d--, 2017 WL
3448016, at *4 (E.D. Mich. Aug. 11, 2017) (lack of standing is properly considered as a motion to
dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1)) (citing Stalley v. Methodist
Healthcare, 517 F.3d 911, 916 (6th Cir. 2008)). “When the defendant challenges subject matter
jurisdiction through a motion to dismiss, the plaintiff bears the burden of establishing jurisdiction.”
Glenn v. Holder, 738 F. Supp. 2d 718, 724 (E.D. Mich. 2010); Am. BioCare, 702 F. App’x at 419
(citation omitted).
B. Article III Standing
Article III of the United States Constitution limits a federal court’s exercise of authority to
“cases” or “controversies.” U.S. Const. art. III § 2 cl.1. The Supreme Court has enumerated the
following familiar elements necessary to establishing standing:
First, Plaintiff must have suffered an injury in fact—an invasion of a legallyprotected interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has
to be fairly traceable to the challenged action of the defendant, and not the
result of the independent action of some third party not before the court.
Third, it must be likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.

5

Challenges to subject-matter jurisdiction fall into two general categories: “facial attacks”—which
argue that the pleading allegations are insufficient—and “factual attacks”—which challenge the
factual veracity of the allegations. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). On a
motion raising a facial attack, “the court must take the material allegations of the petition as true
and construed in the light most favorable to the nonmoving party.” Id. In reviewing a motion raising
a factual attack, “the court is free to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Id.
Beck, 2017 WL 3448016, at *4.

4 

Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 710 (6th Cir. 2015) (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
“These elements are commonly referred to as the ‘injury-in-fact,’ ‘causation,’ and
‘redressability’ requirements.” Phillips v. DeWine, 841 F.3d 405, 414 (6th Cir. 2016) (quoting
Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273, 128 S. Ct. 2531, 171 L. Ed.
2d 424 (2008)); McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016) (quoting Lujan, 504 U.S.
at 560-61). Article III standing is “the threshold question in every federal case, determining the
power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L.
Ed. 2d 343 (1975).
“If a party does not have standing to bring an action, then the court has no authority to hear
the matter and must dismiss the case.” Binno v. Am. Bar Ass’n, 826 F.3d 338, 344 (6th Cir. 2016)
(citation omitted). “The party seeking to invoke federal jurisdiction bears the burden to
demonstrate standing and he ‘must plead its components with specificity.’” Daubenmire v. City of
Columbus, 507 F.3d 383, 388 (6th Cir. 2007) (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488,
494 (6th Cir. 1999) (further citation omitted)); see also Phillips, 841 F.3d at 414 (“‘a plaintiff must
demonstrate standing for each claim he seeks to press’”) (quoting Davis v. Fed. Election Comm’n,
554 U.S. 724, 734, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008) (further citation omitted)). Plaintiffs’
allegation that § 2917.21(B)(2) is overbroad does not excuse them from establishing Article III
standing.6

6

  The relaxation of prudential standing requirements where unconstitutionally overbroad laws may chill protected
speech does not apply to Article III standing requirements. See Prime Media, Inc. v. City of Brentwood, 485 F.3d 343,
349-50 (6th Cir. 2007) (citing Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 98 L.
Ed. 2d 782 (1988)). “[E]ven plaintiffs seeking to assert an overbreadth challenge must first allege sufficient facts to
establish a claim that they have suffered or are likely to suffer some injury as a result of the challenged statute.” Glenn,
738 F. Supp. 2d at 727 (citing Prime Media, 485 F.3d at 353-354); Fieger v. Michigan Supreme Court, 553 F.3d 955,
961 (6th Cir. 2009).

5 

C. Analysis
To establish standing for a free-speech claim, the Plaintiffs generally must show
that “the rule, policy or law in question has explicitly prohibited or proscribed
conduct on the[ir] part.” Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 711 (6th
Cir. 2015) (citing Clapper v. Amnesty Int’l USA, [568 U.S. 398], 133 S. Ct. 1138,
1153, 185 L. Ed. 2d 264 (2013); Nat’l Right to Life Political Action Comm’n v.
Connor, 323 F.3d 684 (8th Cir. 2003)). In the typical case, a statute must be
enforced against the plaintiff before he may challenge its constitutionality, but preenforcement is available in some contexts if “threatened enforcement [is]
sufficiently imminent”—that is, there is “a credible threat” that the provision will
be enforced against the plaintiff. Susan B. Anthony List v. Driehaus, –––U.S. –––,
134 S. Ct. 2334, 2342, 189 L. Ed. 2d 246 (2014).
Phillips, 841 F.3d at 415.
Where, as here, plaintiffs seek declaratory and injunctive relief, “a pre-enforcement
challenge may be made before the actual completion of an injury-in-fact.” Glenn v. Holder, 690
F.3d 417, 421 (6th Cir. 2012) (quoting Grendell v. Ohio Supreme Court, 252 F.3d 828, 832 (6th
Cir. 2001)). But plaintiffs must nevertheless demonstrate constitutional standing. “[A] plaintiff
satisfies the injury-in-fact requirement in the pre-enforcement context where [1] he alleges an
intention to engage in a course of conduct arguably affected with a constitutional interest, but
proscribed by statute, and [2] there exists a credible threat of prosecution thereunder.” McKay, 823
F.3d at 867 (internal quotation marks omitted) (emphasis added) (quoting Susan B. Anthony List,
134 S. Ct. at 2342 (further citation omitted)); Glenn, 690 F.3d at 421 (same) (citation omitted).
1. No injury-in-fact
Plaintiffs do not allege that that they intend to engage
in the conduct proscribed by § 2917.21(B)(2)
Plaintiffs seek a declaration that § 2917.21(B)(2) is overbroad and violates their
constitutional right to engage in political speech. The language of § 2917.21(B)(2)—“No person
shall knowingly post a text or audio statement or an image on an internet web site or web page for
6 

the purpose of abusing, threatening, or harassing another person”—does not expressly prohibit or
proscribe political expression. Nor does the statute prohibit or proscribe internet postings that
condemn, criticize, ridicule, lampoon, or mock government officials and public figures. (See
Compl. ¶¶ 5, 14, 15.) The statute only prohibits online expression “for the purpose of abusing . . .
or harassing another.”
Plaintiffs do not allege that they intend to engage in political expression online for the
purpose of abusing or harassing government officials, public figures, or any person. In the absence
of an allegation that plaintiffs intend to engage in conduct proscribed by the statute, their preenforcement complaint fails to present an injury-in-fact required for constitutional standing. Glenn,
738 F. Supp. at 721 (E.D. Mich. 2010) (pastors claiming that the Hate Crimes Act violates their
first amendment right to oppose homosexual behavior lack standing because the pastors do not
allege that they intended to engage in conduct proscribed by the statute—willfully causing or
attempting to cause bodily injury to a person because of sexual orientation); White v. United States,
No. 2:08-CV-118, 2009 WL 173509, at *3-4 (S.D. Ohio Jan. 26, 2009) (plaintiffs selling and
shipping chickens for breeding and show purposes lack standing to assert a pre-enforcement
challenge to the Animal Welfare Act because the facts alleged in the complaint do not indicate an
intent to engage in activity (relating to cock fighting) that is prohibited by the law); c.f. Kiser v.
Reitz, 765 F.3d 601, 608 (6th Cir. 2014) (dentist’s complaint establishes injury-in-fact where he
alleges an intention to advertise and perform both general dentistry and specialty endodontic
services, which is arguably proscribed by dental board’s regulations that a dentist may practice
and advertise either as a generalist or as a specialist but, if a dentist seeks specialty recognition,
his practice and advertising must be limited exclusively to that specialty).

7 

Plaintiffs’ fear of prosecution is speculative and conjectural
Even though plaintiffs do not allege an intention to engage in online expression for the
purpose of abuse and harassment, they nevertheless claim that they risk prosecution under the
statute “should police or prosecutors believe” that their online expression was posted with the
purpose of abuse or harassment, or “might be considered” to be harassing or abusive of the
individuals that are the subject of their posts. (Compl. ¶¶ 15, 17; see also Doc. No. 2-3 (Declaration
of Joseph Mismas [“Mismas Decl.”]) ¶ 4 (prosecutors and law enforcement could interpret articles
critical of them as intended to “mistreat” or “persistently annoy” them); Doc. No. 2-4 (Declaration
of John Spinelli [“Spinelli Decl.”]) ¶ 4 (“it’s not a stretch to think that [Franklin County prosecutor
Ron O’Brien] could use Ohio’s new law to retaliate against [postings critical of him] in the
future”).)
While plaintiffs need not expose themselves to actual arrest or prosecution in order to
establish an injury-in-fact necessary for standing, their fear of prosecution cannot be “imaginary
or speculative.” Grendell, 252 F.3d at 834 (quoting Younger v. Harris, 401 U.S. 37, 42, 91 S. Ct.
746, 27 L. Ed. 2d 669 (1971)). To establish constitutional standing under Article III, at a minimum,
an injury must be “concrete and particularized” and “actual or imminent, not conjectural or
hypothetical[.]” Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 461 (6th Cir.
2007) (citing Lujan, 504 U.S. at 560). Imminent harm means “‘certainly impending,’ in
contradistinction to ‘allegations of possible future injury.’” Parsons, 801 F.3d at 710 (quoting
Clapper, 568 U.S. at 409). Plaintiffs’ fear that they might be prosecuted under the statute in the
future if their intentions are misconstrued by police or prosecutors is too speculative to establish a
threat of imminent injury required for constitutional standing. White, 2009 WL 173509, at *4
(plaintiffs’ allegation that they might incur injury in the future if their intentions are misconstrued
8 

rests on the occurrence of events that is too speculative and conjectural to present a threat of
imminent injury) (citing Cohn v. Brown, 161 F. App’x 450, 455 (6th Cir. 2005)); Grendell, 252
F.3d at 833 (threat of future injury resting upon a speculative chain of events is too attenuated to
establish injury-in-fact required for constitutional standing); c.f. Steffel v. Thompson, 415 U.S. 452,
459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974) (possible prosecution under panhandling statute is
not imaginary or speculative where plaintiff had been warned twice to stop handbilling and his
handbilling companion was prosecuted).
Plaintiffs have not alleged any facts that objectively support a reasonable fear that they will
be prosecuted under the statute. Plaintiffs’ speculative fear of prosecution is insufficient to
establish a threat of imminent injury required for constitutional standing. See Glenn, 690 F.3d at
426-27.
Subjective chill is insufficient to establish injury
Plaintiffs claim that their fear of prosecution under § 2917.21(B)(2) has subjectively chilled
the content of their political expression. (See Compl. ¶¶ 16, 30; Doc. No. 2-2 (Declaration of Tom
Zowistowski7 [“Zowistowski Decl.”]) ¶ 19; Mismas Decl. ¶ 3.) But, as plaintiffs concede (Opp’n
at 134), “‘[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific
present objective harm or a threat of specific future harm.’” Parsons, 801 F.3d at 711 (quoting
Laird v. Tatum, 408 U.S. 1, 13-14, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972)). “To satisfy the injury
in fact requirement on an allegation of chilled speech, the repercussions responsible for the chilling
effect must be imminent.” Id.; McKay, 823 F.3d at 868-69 (“without some other indication of
imminent enforcement[,] [the Sixth C]ircuit has held that mere allegations of a subjective chill on

7

 Paragraphs 8 and 10 of Zowistowski’s declaration incorrectly identifies the statute at issue as § 2917.21(C)(2).

9 

protected speech are insufficient to establish an injury-in-fact for pre-enforcement standing
purposes[]”) (internal quotation marks omitted) (quoting Berry v. Schmitt, 688 F.3d 290, 296 (6th
Cir. 2012)); see also New Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8,
14 (1st Cir. 1996) (Injury as a consequence of subjective chill hinges on the existence of a credible
threat that the challenged law will be enforced. “A party’s subjective fear that she may be
prosecuted for engaging in expressive activity will not be held to constitute an injury for standing
purposes unless that fear is objectively reasonable.”) (citations omitted). As discussed above,
plaintiffs have failed to establish an objectively reasonable fear of prosecution necessary to support
an injury resulting from subjective chill.
But plaintiffs argue that, because § 2917.21(B)(2) is “newly enacted,” their subjective chill
is sufficient to establish an injury in a pre-enforcement context. (See Opp’n at 135 (“[A]s made
clear by the Supreme Court’s precedent in American Booksellers . . . a newly-enacted criminal
prohibition on speech offers more than mere allegations of a subjective chill.”).) Although §
2917.21(B)(2) was enacted in 2016 to expressly prohibit internet postings made for the purpose of
abuse and harassment, Ohio’s telecommunications harassment statute has prohibited
telecommunications for the purpose of abuse or harassment for decades, and Ohio courts construed
the statute to include internet postings even before the 2016 amendment.8 Moreover, the Supreme
Court in American Booksellers did not find that plaintiffs sustained an injury-in-fact simply
because the statute was newly enacted or because of subjective chill, but because “the law [was]
aimed directly at plaintiffs[.]” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 384, 108 S.
Ct. 636, 638, 98 L. Ed. 2d 782 (1988). Here, the law is not aimed at political expression or sharp

8

 The history of Ohio’s telecommunications statute and pertinent case law is discussed later in this opinion. 

10 

criticism of government and public officials, and plaintiffs do not claim that they intend to post
online for the purpose of abuse or harassment.
While allegations of subjective chill, alone, are insufficient, plaintiffs may nevertheless
establish standing where they
allege a subjective chill and point to some combination of the following factors: (1)
a history of past enforcement against the plaintiffs or others, see, e.g., Russell v.
Lundergan–Grimes, 784 F.3d 1037, 1049 (6th Cir. 2015); (2) enforcement warning
letters sent to the plaintiffs regarding their specific conduct, see, e.g., Kiser v. Reitz,
765 F.3d 601, 608-09 (6th Cir. 2014); Berry, 688 F.3d at 297; and/or (3) an attribute
of the challenged statute that makes enforcement easier or more likely, such as a
provision allowing any member of the public to initiate an enforcement action, see
Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court,
769 F.3d 447, 452 (6th Cir. 2014). See also Susan B. Anthony List, 134 S. Ct. at
2345 (finding “substantial” “threat of future enforcement” based on “history of past
enforcement[,]” statutory provision “allow[ing] ‘any person’ with knowledge of the
purported violation to file a complaint[,]” and evidence that enforcement
proceedings were common).
McKay, 823 F.3d at 868-69 (emphasis in original).
Plaintiffs do not allege any of these factors. They do not point to a history of past
enforcement against political expression—indeed, they concede that “no Ohio appellate decisions
dealing with § 2917.21 have dealt with political speech.” (Opp’n at 126.) Nor do plaintiffs claim
that they have been warned or threatened with prosecution, or that there are reduced barriers to
enforcement. Plaintiffs’ subjective chill, alone, is insufficient to establish an injury-in-fact
necessary for Article III standing.
2. No credible threat of prosecution
In addition to failing to establish a pre-enforcement injury-in-fact, plaintiffs also fail to
establish the second element required for pre-enforcement standing—a credible threat of

11 

prosecution. Assuming the allegations in the complaint and the declarations9 submitted by
plaintiffs in support of injunctive relief are true, neither those facts, nor the law, support plaintiffs’
claim that they face a credible risk of prosecution.
No evidence that plaintiffs (or anyone else) have ever been warned,
threatened or prosecuted under the statute for political expression
As previously discussed, plaintiffs do not contend that they (or anyone else) have ever been
warned, threatened, or prosecuted under § 2917.21(B) for political expression notwithstanding that
Chapter 2917 has prohibited abuse and harassment since 1981.10 In 1981, § 2917.21(B) provided
that “No person shall make or cause to be made a telephone call . . . with the purpose to abuse,
threaten, annoy, or harass another person.” (See Reply, Ex. C.)
In 1999, “telecommunication” was substituted for “telephone call” and the word “annoy”
was removed: “No person shall make or cause to be made a telecommunication, or permit a
telecommunication to be made from a telecommunications device under the person’s control, with
the purpose to abuse, threaten, or harass another person.” (See id., Ex. D.) In 1999, the meaning of
telecommunication and telecommunication device in § 2917.21(B) was the same as in § 2913.01
(see § 2917.21(E)(3)). Sections 2913.01(X) and (Y) defined those terms very broadly, and included
computers and radio.

9

 The complaint seeks declaratory and injunctive relief with respect § 2917.21(B)(2). Plaintiffs filed a motion for
preliminary injunction contemporaneously with the complaint, which attached declarations by plaintiffs in support of
their request for injunctive relief. (See Doc. Nos. 2-2, 2-3, 2-4.) Both sides refer to plaintiffs’ declarations in support
of their arguments regarding defendants’ motion to dismiss.

10

 An even earlier version of § 2917.21(B) prohibited making telephone calls for the purpose of harassment. (See
Reply, Ex. B.) 

12 

In 2016, subsection (B)11 was renumbered as § 2917.21(B)(1),12 and section (B)(2) was
added expressly prohibiting the posting of a text, audio statement, or image on an internet website
or web page for the purpose of abuse or harassment. While subsection (B) has been amended over
the years to reflect advances in technology—telephones, telecommunication devices, internet
websites—the statutory prohibition against utilizing telecommunications for the purpose of abuse
and harassment has remained unchanged.
Plaintiffs’ declarations, taken collectively, aver that they have utilized telecommunication
and telecommunications devices for more than a decade to engage in political expression.
Notwithstanding such lengthy political activism, plaintiffs do not claim that they were ever warned
or prosecuted under § 2917.21(B) because they expressed their political views for the purpose of
abuse or harassment.
For example, Tom Zowistowski (“Zowistowski”), the executive director and founding
member of the Tea Party, avers that “in the past” he and his organization published political
opinions critical of government officials and public figures “through social media online” and on
a radio show. (See Zowistowski Decl. ¶¶ 3, 4, 9.) The definition of a telecommunications device13
under § 2917.21(B) has included “radio” since at least 2007, but Zowistowski does not indicate
that he was ever warned, threatened, or prosecuted under § 2917.21(B) because of political

11

  Before the amendment in 2016, § 2917.21(B) provided that: “No person shall make or cause to be made a
telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's
control, with purpose to abuse, threaten, or harass another person.” Since at least 2007, “telecommunication” has been
broadly defined as “the origination, emission, dissemination, transmission, or reception of data, images, signals,
sounds, or other intelligence or equivalence of intelligence of any nature over any communications system by any
method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.” See §
2917.21(G)(3), incorporating the definition from § 2913.01. 
12

 “Telecommunication” and “telecommunications device” as used in the 2016 amendment retain the same meaning
as in § 2913.01. See Section 2917.21(G)(3). 

13

 See § 2913.01(Y). 

13 

expression on his radio show. Similarly, Zowistowski does not claim that the Tea Party’s use of
social media and online communication for political expression ever triggered a warning or threat
of prosecution by authorities, even though Ohio courts applied § 2917.21(B) to social media and
online communications long before § 2917.21(B)(2) was effective in 2016. See State v. Ellison,
900 N.E.2d 228, 229-30 (Ohio Ct. App. 2008) (posting on the social networking internet web site
MySpace, where viewing of the site is open to the public, is a telecommunication within the
meaning of § 2917.21(B)); State v. Klingel, 88 N.E.3d 455, 462-63 (Ohio Ct. App. 2017)
(affirming 2015 conviction for telecommunications harassment under § 2917.21(B) for postings
on Facebook page); see also State v. Cline, No. 07CA02, 2008 WL 1759091, at *1 (Ohio Ct. App.
Apr. 16, 2008) (upholding conviction under § 2917.21(B) for, among other things, utilizing the
internet for harassment); State v. Dundics, 62 N.E.3d 1013, 1014-15 (Ohio Ct. App. 2016)
(affirming judgment of telecommunications harassment based upon on Facebook postings).
The owner and editor of plaintiff Plunderbund, Joseph Mismas, also submitted a
declaration. He avers that Plunderbund operates a blog critical of the government and elected
officials, and cites examples from as far back as 2013. (See Mismas Decl. ¶¶ 1, 5, 6, 7.) As
discussed above, Ohio courts found that online postings for the purpose of abuse and harassment
were prohibited by § 2017.21(B) before the statute was amended in 2016. Yet, Mismas does not
claim that he (or Plunderbund) was ever warned, threatened, or prosecuted for Plunderbund’s
political blog postings.
Finally, plaintiff Spinelli avers that, since 2006, he has published “thousands” of articles
on his blog that were highly critical of public officials and the government. (Spinelli Decl. ¶¶ 26.) As discussed above, Spinelli’s blog posts were telecommunications under § 2917.21(B) even
before the 2016 amendment. Yet, Spinelli does not claim that he has ever been warned, threatened
14 

or prosecuted under § 2917.21(B) because the political expression on his blog was considered
purposefully abusive or harassing under Ohio’s telecommunications harassment statute.
Plaintiffs’ declarations belie the claim that they face a credible threat of prosecution under
§ 2917.21(B)(2). They have never been warned or prosecuted under the telecommunications
statute despite years of self-described sharp political expression online, notwithstanding that Ohio
courts found social media and online internet communications to be a telecommunication under §
2917.21(B) well before the 2016 amendment. Moreover, no matter the nature of the
telecommunications device, plaintiffs do not identify any cases where Ohio courts applied the
telecommunications harassment statute to political expression.
Ohio courts construe § 2917.21(B) narrowly
The manner in which Ohio courts have construed and applied Ohio’s telecommunications
statute before the 2016 amendment further undermines plaintiffs’ claim that they face a credible
threat of prosecution under § 2917.21(B)(2). First, the statute has been construed by Ohio courts
to prohibit abusive and harassing conduct, not the content of a telecommunication. The purpose of
§ 2917.21(B) is to stop “criminal conduct, not the expression of offensive speech.” Ellison, 900
N.E.2d at 230. “The statute operates to prohibit people from purposely making abusive,
threatening, or harassing telecommunications; it does not restrict protected speech.” State v.
Kronenberg, No. 101403, 2015 WL 1255845, at *6 (Ohio Ct. App. Mar. 19, 2015) (citation
omitted). See also, State v. Stanley, No. 06AP-65, 2006 WL 2575646, at *5 (Ohio Ct. App. Aug.
31, 2006) (“R.C. 2917.21(B) does not define ‘abuse,’ ‘threaten,’ or ‘harass.’ The fact that the
statute does not place legal definitions on each of these terms demonstrates that the General
Assembly intended to prohibit conduct that is easily definable by the common everyday meaning
of these words.”); State v. Dennis, No. 1-97-42, 1997 WL 691448, at *2 (Ohio Ct. App. Oct. 30,
15 

1997) (Section 2917.21(B) is not unconstitutionally vague because the statute “establish[es] a
standard of conduct prohibited through telephonic means. A person of ordinary intelligence has
fair notice that they cannot make a telephone call with the purpose of being abusive . . . or
harassing.”); City of Akron v. Hawthorne, No. 13670, 1989 WL 10333, at *1 (Ohio Ct. App. Feb.
8, 1989) (Telecommunications statute is “not directed at the restriction of the communication of
ideas, but [] at the regulation of specific conduct—the making of a telephone call with the purpose
to harass, abuse, or annoy another.”). The narrow application of the telecommunications
harassment statute to conduct does not support plaintiffs’ argument that they face a credible threat
of prosecution based on the content of their political expression.
Moreover, Ohio’s telecommunications harassment statute is a specific-intent crime. To
violate the statute, a criminal defendant’s specific purpose must be to abuse or harass; it is not
sufficient that the defendant simply knew or should have known that his conduct would cause
harassment. “The legislature has created th[e] substantial burden [of a specific-intent crime] to
limit the statute’s scope to criminal conduct, not the expression of offensive speech.” Ellison, 900
N.E.2d at 230. The “critical inquiry” is “whether the purpose of the person who made the call was
to abuse, threaten or harass the person called.” State v Kronenberg, 2015 WL 1255845, at *2
(citation omitted). The test is not whether the recipient of the telecommunication feels abused or
harassed. State v. Bonifas, 632 N.E.2d 531, 533 (Ohio Ct. App. 1993) (“[T]he gravamen of the
offense of telephone harassment is not the fact that the recipient of the call is annoyed by the call.
Rather, the offense must be proven in terms of the defendant’s purpose to abuse, threaten, annoy,
or harass the person called.”); State v. Davidson, No. CA2009-05-014, 2009 WL 4895668, at *2
(Ohio Ct. App. Dec. 21, 2009). Telecommunication made for a legitimate purpose, not to abuse or
harass, is not prohibited by the statute. State v. Pleatman, No. C-160234, 2016 WL 6635323, at *
16 

3 (Ohio Ct. App. Nov. 9, 2016) (citing Ellison, 900 N.E.2d at 231 (no purpose to harass where
defendant had the legitimate purpose of warning others about someone that she believed was a
child molester)); State v. Patel, No. 03 BE 41, 2004 WL 614986, at *4 (Ohio Ct. App. Mar. 24,
2004) (purpose of message was not to harass even where message included profanity and name
calling); State v. Harshbarger, No. 2-09-19, 2010 WL 3636239, at *5 (Ohio Ct. App. Sept. 20,
2010) (defendant did not make telephone call with the purpose to abuse, threaten or harass, but to
resolve a dispute, even though the conversation quickly disintegrated into the making of threats).
Considering Ohio’s case law regarding telecommunications harassment, plaintiffs have not
established that they face a credible threat of prosecution under § 2917.21(B)(2) for engaging in
protected political expression online for a legitimate purpose, not abuse or harassment.
Finally, with respect to public internet posts, Ohio courts have required that the purportedly
abusive and harassing message must be directed to an individual, not simply about an individual.
See Klingel, 88 N.E.3d at 461 (message was directed to the subject where defendant posted a
message on his Facebook page to “any law enforcement officer looking at my page,” threatening
them with death and soliciting others to “kill some cops”); c.f. Ellison, 900 N.E.2d at 231 (internet
posting did not have purpose to harass where the posting could have served the legitimate purpose
of warning others of the subject’s rumored criminal behavior and the posting was public but not
directed to the subject).
“Federal courts are obligated to accept as valid a state court’s interpretation of state law
and rules of practice of that state.” Vroman v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (citation
omitted). “‘A standard principle of statutory construction provides that identical words and phrases
within the same statute should normally be given the same meaning.’” Blackburn v. Oaktree
Capital Mgmt., LLC, 511 F.3d 633, 637 (6th Cir. 2008) (quoting Powerex Corp. v. Reliant Energy
17 

Servs., Inc., 551 U.S. 224, 232, 127 S. Ct. 2411, 168 L. Ed. 2d 112 (2007)); Binno, 826 F.3d at
346 (“If a term is used multiple times in the same statute, we presume that it has the same meaning
wherever it is used in the statute.”) (citing Util. Air Regulatory Grp. v. E.P.A., –––U.S. ––––, 134
S. Ct. 2427, 2441, 189 L. Ed. 2d 372 (2014)). Plaintiffs have not advanced any argument to support
a conclusion that § 2917.21(B)(2) (expressly prohibiting internet posts made for the purpose of
abuse or harassment) will be construed and applied by Ohio courts any differently than the existing
precedent regarding Ohio’s telecommunications harassment statute.
Given the narrow construction of the telecommunications harassment statute by Ohio
courts, the application of the statute to social media and internet communications before the 2016
amendment, existing precedent, and principles of statutory construction, plaintiffs fail to establish
that they face a credible threat of prosecution under § 2917.21(B)(2) for online political expression
not made for the purpose of abuse and harassment. Thus, the Court concludes that plaintiffs do not
face a credible threat of prosecution under the § 2917.21(B)(2) for posting their political views on
the internet.

18 

III. CONCLUSION
For all of the foregoing reasons, the Court finds that plaintiffs lack standing under Article
III to assert their claims with respect to Ohio Rev. Code § 2917.21(B)(2).14 In the absence of
standing, the Court lacks subject matter jurisdiction over this case. Accordingly, defendants’
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is granted. This case is dismissed and closed.
IT IS SO ORDERED.

Dated: February 28, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

14

 To the extent that the complaint also asserts a claim with respect to Ohio Rev. Code § 2917.21(B)(1), the Court
finds that plaintiffs lack standing for those claims, as well, for the same reasons they lack standing with respect to §
2917.21(B)(2).

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