Susan B. Anthony List v. Driehaus et al

Filing 139

ORDER: (1) GRANTING PLAINTIFFS' MOTIONS FOR A PRELIMINARY INJUNCTION (2) GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; and (3) PERMANENTLY ENJOINING THE ENFORCEMENT OF OHIO'S POLITICAL FALSE-STATEMENTS LAWS BY THE OHIO ELECTIONS COMMISSION AND ITS MEMBERS. Signed by Judge Timothy S. Black on 9/11/2014. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SUSAN B. ANTHONY LIST, et al.,
Plaintiffs,

:
:
:
vs.
:
:
OHIO ELECTIONS COMMISSION, et al., :
Defendants.
:

Case No. 1:10-cv-720
Judge Timothy S. Black

ORDER:
(1) GRANTING PLAINTIFFS’ MOTIONS FOR A PRELIMINARY INJUNCTION
(2) GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; and
(3)

PERMANENTLY ENJOINING THE ENFORCEMENT OF
OHIO’S POLITICAL FALSE-STATEMENTS LAWS1
BY THE OHIO ELECTIONS COMMISSION
AND ITS MEMBERS

This civil action is currently before the Court on Plaintiffs’ motions for a
preliminary injunction (Docs. 120, 121) and the parties’ responsive memoranda
(Docs. 133, 135, 136).2 Also pending before the Court are the parties’ cross-motions for
summary judgment, each asking respectively that Ohio’s political false-statements laws,
Ohio Rev. Code § 3517.21(B)(9)-(10), be declared unconstitutional or constitutional.
(Docs. 126, 134). On September 4, 2014, the Court heard oral argument on the motion.
The entire case is ripe for final resolution in this trial court.

1

2

Ohio Rev. Code §§ 3517.21(B)(9) and 3517.21(B)(10).

Plaintiffs include Susan B. Anthony List (“SBA List”) and the Coalition Opposed to Additional
Spending & Taxes (“COAST”). Plaintiffs originally filed separate lawsuits which were consolidated
by this Court. (See 11/19/10 Notation Order).

OVERVIEW
“[We are not] arguing for a right to lie. We’re arguing that we have a right
not to have the truth of our political statements be judged by the Government.”
This is the issue presented, as stated by Plaintiffs Susan B. Anthony List (an anti-abortion
advocacy group) and the Coalition Opposed to Additional Spending & Taxes.
Lies have no place in the political arena and serve no purpose other than to
undermine the integrity of the democratic process. The problem is that, at times, there is
no clear way to determine whether a political statement is a lie or the truth. What is
certain, however, is that we do not want the Government (i.e., the Ohio Elections
Commission) deciding what is political truth -- for fear that the Government might
persecute those who criticize it. Instead, in a democracy, the voters should decide. And
thus today the Court must decide whether Ohio’s political false-statements laws are
the least restrictive means of ensuring fair elections. The short answer is no.
This Court is not the first to reach such a decision. Just days ago, the federal
Court of Appeals for the Eighth Circuit struck down as unconstitutional Minnesota’s
political false-statements laws, which are exceedingly similar to Ohio’s, finding that the
law “is not necessary, is simultaneously overbroad and underinclusive, and is not the
least restrictive means of achieving any stated goal.” 281 Care Comm. v. Arneson,
No. 13-1229, 2014 U.S. App. LEXIS 16901 (8th Cir. Sept. 2, 2014).
Here in Ohio, there is no reason to believe that the OEC is positioned to determine
what is true and what is false when it comes to political statements. In fact, it is entirely
possible that a candidate could make a truthful statement, yet the OEC would determine a
2

few days before an election that the statement is false, penalizing the candidate for
speaking the truth and chilling further truthful speech. Lawyers and courts call such a
statute “overbroad” and hence unconstitutional. Further, the statute does not even ensure
that the hearing process will conclude in time to preserve the integrity of the election.
What then is the alternative? The United States Supreme Court has clearly
signaled the answer. For starters, the Supreme Court held flatly in 2012 that: “The
remedy for speech that is false is speech that is true. This is the ordinary course in a
free society. The response to the unreasoned is the rational; to the uninformed, the
enlightened; to the straight-out lie, the simple truth.” United States v. Alvarez, 132 S.
Ct. 2537, 2550 (2012) (emphasis supplied). The more modern recitation of this
longstanding and fundamental principle of American law was recently articulated by
Frank Underwood in House of Cards: “There’s no better way to overpower a trickle
of doubt than with a flood of naked truth.”
In short, the answer to false statements in politics is not to force silence, but to
encourage truthful speech in response, and to let the voters, not the Government, decide
what the political truth is. Ohio’s false-statements laws do not accomplish this, and the
Court is not empowered to re-write the statutes; that is the job of the Legislature.
Accordingly, the Court finds that Ohio’s laws are more burdensome than
necessary to accomplish their alleged objectives and do not satisfy strict scrutiny under
the Constitution of the United States. Therefore, the Court strikes down the laws as
unconstitutional and permanently enjoins the Ohio Elections Commission and its
members from enforcing Ohio’s political false-statements laws.
3

I.

BACKGROUND FACTS

Plaintiffs seek a preliminary injunction against the enforcement of Ohio Revised
Code Sections 3517.21(B)(9) and 3517.21(B)(10) by the Ohio Elections Commission
(“OEC”).3 Plaintiffs challenge the law on First Amendment grounds, both facially and as
applied.
This Court originally dismissed Plaintiffs’ claims as non-justiciable, concluding
that Plaintiffs did not present a sufficiently concrete injury for purposes of standing or
ripeness. The Sixth Circuit affirmed on ripeness grounds. Susan B. Anthony List v.
Driehaus, 525 F. App’x 415 (6th Cir. 2013). On June 16, 2014, the United States
Supreme Court reversed, holding that Plaintiffs could proceed with their First
Amendment challenge to Ohio’s political false-statements laws. Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334 (2014).4
Specifically, the Supreme Court concluded that Plaintiffs had “alleged a
sufficiently imminent injury for purposes of Article III.” Id. at 2338. In doing so, the
Supreme Court noted that Plaintiffs’ “as-applied claims ‘are better read as facial
objections to Ohio’s laws.’” Id. at 2340 n. 3.

3

The Ohio Elections Commission, originally established in 1974, was reformulated as a seven member
body in 1995, and reestablished as an independent government agency. Membership consists of six
members (three members from each major political party in Ohio), appointed by the Governor upon
recommendation by the Democratic and Republican caucuses of the General Assembly. By statute, the
seventh member cannot be affiliated with either major political party and is appointed by the six partisan
members of the Commission. See Ohio Elections Commission History available at:
http://elc.ohio.gov/History.stm (last visited on Sept. 10, 2014).

4

Plaintiff SBA List has subsequently dismissed all claims it had asserted against Defendant Driehaus,
in order to proceed only against the OEC and its members in their official capacity. (Doc. 131).

4

Although the speech that initially sparked this lawsuit concerned the 2010
elections, Plaintiffs maintain that they will continue to criticize Members of Congress for
supporting the Affordable Care Act (“ACA” (also known as Obamacare)) because it
allegedly funds abortion. Specifically, Plaintiffs plan to speak during the upcoming
campaign about U.S. Representative Marcy Kaptur, who voted for the ACA, despite her
stated, longstanding support of pro-life values. Accordingly, Plaintiffs face a credible
threat of triggering enforcement proceedings by the OEC this fall.
A. Ohio’s Political False-Statements Laws
In Ohio, it is a crime to “[p]ost, publish, circulate, distribute, or otherwise
disseminate a false statement concerning a candidate, either knowing the same to be false
or with reckless disregard of whether it was false or not, if the statement is designed to
promote the election, nomination, or defeat of the candidate.” Ohio Rev. Code
§ 3517.21(B)(10). Likewise, it is a crime to “[m]ake a false statement concerning the
voting record of a candidate or public official.” Ohio Rev. Code § 3517.21(B)(9).
Together, these provisions comprise Ohio’s political false-statements laws.
To commit a violation of (B)(9), a person must have knowledge of the offending
statement’s falsity. Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 577 (6th Cir. 1991)
(recognizing that (B)(9) affects only the knowing making of false statements). Under
(B)(10), a person must act with actual malice, meaning either knowledge or reckless
disregard of falsity. McKimm v. Ohio Elections Comm’n, 729 N.E.2d 364, 372-73 (Ohio
2000).

5

Violation of Ohio’s political false-statements laws is a first-degree misdemeanor.
Ohio Rev. Code § 3599.40. Thus, “[w]hoever violates section 3517.21 … shall be
imprisoned for not more than six months or fined not more than five thousand dollars, or
both.” Ohio Rev. Code § 3517.992(V).
Procedurally, “any person” may file a complaint with the OEC alleging a violation
of these political false-statements laws. Ohio Rev. Code § 3517.153(A). If a complaint
alleging a false statement is filed within 60 days of a primary election or 90 days of a
general election, the OEC must hold an “expedited hearing,” at which a three-member
panel of the OEC’s political appointees decides if “[t]here is probable cause to believe
that the failure to comply with or the violation of a law alleged in the complaint has
occurred.” Ohio Rev. Code § 3517.154(A) and § 3517.156(A), (C). If so, the panel must
refer the case to the full Commission, and if the full Commission then finds a violation by
“clear and convincing evidence,” the OEC “shall refer the matter to the appropriate
prosecutor.” Ohio Rev. Code § 3517.156(C)(2) and § 3517.155(D)(2). See generally
SBA List, 134 S. Ct. at 2338-2339 (describing statutory regime). Alternatively, the
OEC’s regulations state that it may simply issue a reprimand. Ohio Admin. Code
§ 3517-1-14(D).
B. Burdens on Speech
Ohio’s statute allows anyone to trigger proceedings against a speaker. In fact,
political candidates have exploited the statute to silence opponents by strategically
deploying OEC complaints to burden and distract their electoral rivals. SBA List, 134 S.
Ct. 2334 (citing Amicus Brief of the Ohio Atty. Gen. at 7). Indeed, when a complaint is
6

filed, a probable cause hearing must be held and there is “no system for weeding out
frivolous complaints.” Id. at 6 (emphasis supplied). “The speaker is forced to use time
and resources responding to the complaint, typically at the exact moment that the
campaign is peaking and his time and resources are best used elsewhere.” Id. at 15.
Moreover, once a panel finds probable cause, a “very low hurdle,” discovery is
allowed, which permits political candidates to delve into the confidential communications
of their opponents. Id. at 5. And the probable cause finding “is perceived by a
substantial part of the electorate as the definitive pronouncement of the State of Ohio as
to a candidate’s or other speaker’s truthfulness” and thus triggers “profound” political
damage, even before a final OEC adjudication. Id. at 6. Thus, complaints to the OEC
can “be manipulated … so that the costs they impose on a political opponent form part of
the complainant’s campaign strategy.” Id. at 5. Indeed, the OEC concedes that political
campaigns “use the Commission as a part of their activities.” Ohio Elections
Commission: History. Available at: http://elc.ohio.gov/History.stm (last visited Sept. 11,
2014).
The manipulation of the OEC is evidenced by the fact that most complaints are
filed just days before an election, so that the target will have no opportunity for judicial
review before the election. SBA List, 134 S. Ct. 2334 (citing Amicus Br. of Ohio Atty.
Gen. at 16). The complainants then routinely move to dismiss the complaints after the
election is over, having already “inflicted” the damage of “time and cost to the opposition
of having to defend itself in the campaign’s final days.” Id. at 21. The OEC regularly and
routinely grants these motions. Id. at 20.
7

C. Probable Cause
In 2010, SBA List criticized certain Members of Congress, including U.S.
Representatives Steve Driehaus and Marcy Kaptur of Ohio, who voted for the ACA.
Among other things, SBA List planned to erect large billboards stating: “Shame on Steve
Driehaus! Driehaus voted FOR taxpayer-funded abortion.” (Doc. 25-3 at 10). After SBA
List’s plan for billboards was reported in the news, Driehaus filed a complaint with the
OEC, alleging that SBA List was violating Ohio’s political false-statements laws. (Doc.
25-3 at 2). Driehaus’s complaint focused on his claim that the ACA does not specifically
appropriate federal funds for abortions, and that SBA List’s speech was therefore false.
The OEC held an expedited hearing and voted 2-1 that there was probable cause to
believe that SBA List had committed the crime. (Doc. 25-5 at 30). Driehaus then served
discovery requests to SBA List and third parties. (Docs. 25-6, 25-7). Driehaus also
noticed depositions of three SBA List officials, subpoenaed officials of allied
organizations, and sought the production of documents, including communications with
political party committees and Members of Congress and their staff. (Id.)
Ultimately, after SBA List filed this First Amendment suit seeking to restrain
enforcement of the political false-statements laws, Driehaus lost re-election and moved
to withdraw his OEC complaint, which motion the OEC granted (without objection from
SBA List).
D. 2014 Elections
Plaintiffs’ legal claims remain alive today because Plaintiffs want to criticize Ohio
candidates during the current election cycle, but fear that doing so will subject them to
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enforcement proceedings under the political false-statements laws. SBA List, 134 S. Ct.
at 2346. In particular, Plaintiffs want to post billboards concerning U.S. Representative
Marcy Kaptur, who is seeking reelection on November 4, 2014. SBA List maintains that
the billboard will state: “Shame on Marcy Kaptur! Kaptur voted FOR taxpayer-funded
abortion.” (Doc. 120, Ex. A at ¶ 17). However, because of the OEC’s probable cause
finding that the statement was false relating to the same speech regarding Driehaus in
2010, Plaintiffs claim that engaging in this speech again in this fall’s election season will
cause them to suffer substantial financial, political, and reputational harms, including
potential criminal penalties (i.e., up to six months in prison). (Id. at ¶ 8).
In these circumstances, the United States Supreme Court confirmed this summer
that Plaintiffs’ facial First Amendment challenge to Ohio’s political false-statements laws
is ripe for review. SBA List, 134 S. Ct. at 2341 n.5.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 65(a)-(b) permits a party to seek injunctive relief
when the party believes that it will suffer immediate and irreparable injury, loss, or
damage. Nevertheless, an “injunction is an extraordinary remedy which should be
granted only if the movant carries his or her burden of proving that the circumstances
clearly demand it." Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566,
573 (6th Cir. 2002).
In determining whether to grant injunctive relief, this Court must weigh four
factors: (1) whether the moving party has shown a strong likelihood of success on the
merits; (2) whether the moving party will suffer irreparable harm if the injunction is not
9

issued; (3) whether the issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuing the injunction. Ne. Ohio
Coal. For Homeless & Serv. Emp. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999,
1099 (6th Cir. 2006). These four considerations are factors to be balanced, not
prerequisites that must be met. McPherson v. Michigan High Sch. Athletic Ass’n, Inc.,
119 F.3d 453, 459 (6th Cir. 1997).
To obtain a permanent injunction, the plaintiff must show that: (1) he has suffered
an irreparable injury; (2) the remedies available at law are inadequate to compensate for
the injury; (3) considering the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) the public interest would not be disserved by a
permanent injunction. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The
decision to grant a permanent injunction is within the judicial discretion of the district
court. Wayne v. Vill. of Sebring, 36 F. 3d 517, 531 (6th Cir. 1994).
III.
A.

ANALYSIS

Likelihood of Success on the Merits

The Supreme Court in 2012 held flatly that: “The remedy for speech that is
false is speech that is true. This is the ordinary course in a free society. The response
to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out
lie, the simple truth.” Alvarez, 132 S. Ct. at 2550 (emphasis supplied). This has always
been the approach in our free and democratic society. See Whitney, 274 U.S. at 377 (“If
there be time to expose through discussion the falsehood and fallacies, to avert the evil by

10

the processes of education, the remedy to be applied is more speech, not enforced
silence”).
In evaluating Plaintiffs’ motion for the Court to strike down as unconstitutional
Ohio’s political false-statements laws, the first factor to consider is “whether the plaintiff
has demonstrated a strong likelihood of success on the merits.” Certified Restoration Dry
Cleaning Network v. Tenke Corp., 511 F.3d 535, 543 (6th Cir. 2007). Indeed, in First
Amendment cases such as this one, the likelihood of success on the merits “often will be
determinative,” as the other factors necessarily depend on whether the challenged law is
unconstitutional. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998).
Plaintiffs argue that Ohio’s political false-statement laws are unconstitutional
because they invade a citizen’s right to speak freely in politics. As Plaintiffs put it:
“[We are not] arguing for a right to lie. We’re arguing that we have a right not to
have the truth of our political statements be judged by the Government.” (Sept. 4,
2014 Oral Argument Transcript at 46). The distinction is critical and is based on the
quintessential truth that “[t]he First Amendment itself reflects a judgment by the
American people that the benefits of its restrictions on the Government outweigh the
costs.” Stevens, 130 S. Ct. at 1585.
1.

Restriction on Protected Speech

In defense of Ohio’s political false-statements laws, Defendants argue that a
knowingly false statement is not protected speech, and, therefore, is not subject to First
Amendment protection. Defendants highlight that the Sixth Circuit (prior to Alvarez)

11

held that Ohio’s political false-statements laws are facially constitutional. Pestrack v.
Ohio Elections Comm’n, 926 F.2d 573, 577-78 (6th Cir. 1991).
However, the only federal appellate court which has considered the merits of a
false statement statute like Ohio’s post-Alvarez very recently declared the statute
unconstitutional. 281 Care Comm., No. 13-1229, 2014 U.S. App. LEXIS 16901. As to
the Minnesota political false-statements laws, which are exceedingly similar to Ohio’s,
the federal Court of Appeals for the Eighth Circuit held: “Even if we were to assume that
the asserted compelling interests discussed herein pass muster for purposes of this
constitutional analysis, no amount of narrow tailoring succeeds because [Minn. Stat.]
§ 211B.06 is not necessary, is simultaneously overbroad and underinclusive, and is not
the least restrictive means of achieving any stated goal.” Id. at 22-23. While not binding
on this Court, the Eighth Circuit’s opinion is highly persuasive.
Moreover, as the Supreme Court has explained: “Whatever differences may exist
about interpretations of the First Amendment, there is practically universal agreement
that a major purpose of that Amendment was to protect the free discussion of
governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). This democratic
approach comports with the common understanding that some false statements are
inevitable if there is to be an open and vigorous expression of views in public and private
conversation, expression that the First Amendment seeks to guarantee. New York Times
v. Sullivan, 376 U.S. 254, 271 (1964) (“Th[e] erroneous statement is inevitable in free
debate.”). Accordingly, “[t]he First Amendment itself reflects a judgment by the
American people that the benefits of its restrictions on the Government outweigh the
12

costs.” Stevens, 130 S. Ct. at 1585. Thus, the Supreme Court instructs that “political
speech must prevail against laws that would suppress it, whether by design or
inadvertence.” See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010).
Therefore, as the Supreme Court stated in Citizens United: “The [Supreme] Court
has never endorsed the categorical rule … that false statements receive no First
Amendment protection.” Id. Instead, “[e]ven when considering some instances of
defamation or fraud, the [Supreme] Court has instructed that falsity alone may not suffice
to bring the speech outside the First Amendment.” Id.
So while knowingly false speech is not categorically exempt from First Amendment protection in the same manner as “fighting words, obscenity, child pornography,
and defamation,” 281 Care, 638 F.3d at 633, knowingly false political speech is not
automatically akin to fraud or defamation. While knowingly false speech may be an
element of fraud or defamation, false political speech by itself does not implicate
“important private interests.” Id. at 634. As a result, knowingly false political speech
does not fall entirely outside of First Amendment protection, and any attempt to limit
such speech is a content-based restriction, subject to close review.
2.

Level of Scrutiny

“Content-based speech restrictions can only stand if they meet the demands of
strict scrutiny.” 281 Care, 638 F.3d at 633, 636. To satisfy the strict scrutiny test, a law
must be “narrowly tailored to achieve a compelling governmental interest.” Abrams v.
Johnson, 521 U.S. 74, 82 (1997). Ohio’s statute is content-based because it applies only
to certain speech about candidates. See, e.g., Rickert v. Pub. Disclosure Comm’n, 168
13

P.3d 826, 828 (Wash. 2007) (applying strict scrutiny to Washington false-statement law).
The fact that the law targets political speech only further supports such a finding.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47 (1995) (“When a law burdens
core political speech, … we uphold the restriction only if it is narrowly tailored to serve
an overriding state interest”).
In Alvarez, the Supreme Court addressed the constitutional challenge of a man
charged under the Stolen Valor Act, 18 U.S.C. Section 704, with falsely representing
himself as a recipient of a decoration or medal from Congress or the armed forces.
132 S. Ct. 2537. In a split decision, a majority of the justices upheld the Ninth Circuit
Court of Appeals’ ruling that the Stolen Valor Act was unconstitutional. Id. at 2551. In
conducting its First Amendment analysis, a four-justice plurality held that strict scrutiny
must apply to the Stolen Valor Act. Id. at 2548-51.5 The plurality held that the law was
not necessary to achieve compelling interests and that less restrictive alternatives existed.
Id. at 2550-51. The same is true here.
a.

Compelling Interest

Defendants argue that Ohio’s statute satisfies the strict scrutiny test because Ohio
has a compelling interest in protecting the integrity of its elections. See, e.g., Wesberry v.
Sanders, 376 U.S. 1, 17 (1964) (“Other rights, even the most basic, are illusory if the
right to vote is undermined.”). Ohio’s interest in preventing fraud “carries special weight
during election campaigns when false statements, if credited, may have serious adverse
5

The concurring justices held that intermediate scrutiny should apply, and still struck down the law as
unconstitutional, noting that Congress could have passed a more “finely tailored” statute. Id. at 2556.

14

consequences for the public at large.” McIntyre, 514 U.S. at 349. Alas, there do indeed
exist some political candidates who are “unscrupulous enough and skillful enough to use
the deliberate or reckless falsehood as an effective political tool to unseat the public
servant or even topple an administration.” Garrison v. Louisiana, 379 U.S. 64, 75
(1964).
However, in McIntyre, the Supreme Court did not describe the state interest in
preventing false speech as “compelling” or even “substantial,” saying only that it was
“legitimate” and has “special weight during election campaigns.” 514 U.S. at 349, 351.
McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s
political false-statements laws. Moreover, Defendants cite no evidence that the false
statements laws are “actually necessary” to achieve their interest. Brown v. Entm’t
Merch. Ass’n, 131 S. Ct. 2729, 2738 (2011). To be actually necessary, there must be a
direct causal link between the restriction imposed and the injury to be prevented. Id.6
Here, instead, Defendants admit that “the consequences of deceptive false statements on
elections are … inherently difficult to quantify.” (Doc. 133 at 17 n. 5).
Furthermore, there is no reason to believe that the OEC is positioned to determine
what is true and what is false. In fact, the statute does not even ensure that the hearing
process will conclude in time to preserve the integrity of the election, because most falsestatement complaints are filed days before an election, preventing the OEC from
determining the truth or falsity of the statement before the election takes place. SBA List,
6

The Supreme Court has required empirical proof in the past. See, e.g., Entm’t Merchs. Ass’n, 131 S.
Ct. at 2738-39 (requiring empirical proof of a “direct causal link” between violent video games and harm
to minors, not just “some correlation”).

15

134 S. Ct. 2334 (citing Amicus Br. of Ohio Atty. Gen. at 14-16). Instead, the OEC issues
preliminary “probable cause” findings, which are not final determinations on the merits,
yet are “perceived by a substantial part of the electorate as the definitive pronouncement
of the State of Ohio as to a candidate’s or other speaker’s truthfulness” and thus trigger
“profound” political damage, even before final adjudication. Id. at 6.
As a fallback argument, Defendants assert that even if the law cannot identify or
punish false speech in time for an election, it may—in theory—deter false speech in the
first place. However, in practice, the evidence supports a finding that the statute actually
deters speech, because of the burden it places on all speakers, including truthful speakers.
Specifically, the OEC proceedings require a candidate to “divert significant time
and resources to hire legal counsel and respond to discovery requests in the crucial days
leading up to an election.” SBA List, 134 S. Ct. at 2346. Such burdens are equally
imposed on truthful speakers, because once a false statement complaint is filed, the
OEC must hold a hearing which costs the speaker time and money. And, worse yet,
unlike the recently-declared unconstitutional Minnesota false-statement law, which
allowed for dismissal on a “prima facie review of the complaint” before any probable
cause hearing, Ohio’s process does not weed out frivolous complaints before the speaker
is burdened. Id. at 2345. “[T]he practical effect of the Ohio false statement scheme is to
permit a private complainant … to gain a campaign advantage without ever having to
prove the falsity of a statement.” Id. at 2346.
Allegedly, Ohio’s law is meant “[t]o protect voters” from being swayed by lies.
Accordingly, the state interest is not protecting citizens from personal injuries, but rather
16

paternalistically protecting the citizenry at large from “untruths” identified by
Government appointees. See, e.g., 281 Care, 638 F.3d at 635-36 (“This law put the
Minnesota state government in the unseemly position of being the arbiter of truth about
political speech”). Unlike in Alvarez, where the only factual issue, whether you have
been awarded medals or not, was easily ascertainable, the factual issues raised before the
OEC are far more complicated and require a sophisticated analysis.
Therefore, Defendants have failed to evidence that Ohio’s statute actually protects
the compelling interest of protecting the integrity of elections.
b.

Narrowly Tailored

When the Government seeks to regulate protected speech, the restriction must be
the “least restrictive means among available, effective alternatives.” Ashcroft v. Am.
Civil Liberties Union, 542 U.S. 656, 665-66 (2004). If a statute limiting otherwise
protected speech is achievable by less restrictive means, the restriction does not survive
strict scrutiny. A statute is “unacceptable if less restrictive alternatives would be at least
as effective in achieving the legitimate purpose that the statute was enacted to serve.” Id.
Plaintiffs argue that the statute is not narrowly tailored, because it chills a
substantial amount of truthful speech. Alvarez, 132 S. Ct. 2555-56 (suggesting that
limitations on false political speech must balance the potential harm lies are likely to
cause against the risk of chilling valuable speech). A statute is unconstitutionally overinclusive or overbroad if it “sweep[s] too broadly” in restricting speech. Wersal v.
Sexton, 674 F.3d 1010, 1024-26 (6th Cir. 2012). In addition to unnecessarily restricting
speech by its very terms, a statute may also be overbroad if it “chills” a speaker from
17

engaging in otherwise protected speech. See, e.g., Broadrick v. Oklahama, 413 U.S. 601,
612 (1973). For example, the threat of criminal prosecution for making a false statement
can inhibit the speaker from making true statements, thereby “chilling” a kind of speech
that lies at the First Amendment’s heart. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340
(1974).
Defendants argue that Sections 3517.21(B)(9)-(10) provide more than enough
breathing space to prevent First Amendment harm. Specifically, the provisions require
both actual malice and clear and convincing evidence. “[B]reathing space is provided by
a constitutional rule that allows public figures to recover for libel or defamation only
when they can prove both that the statement was false and that the statement was made
with the requisite level of culpability.” Hustler Magazine v. Falwell, 485 U.S. 46, 52
(1988).
In Alvarez, the Stolen Valor Act was “construed to prohibit only knowing and
intentional acts of deception about readily verifiable facts within the personal knowledge
of the speaker, thus reducing the risk that valuable speech is chilled.” 132 S. Ct. at 2555.
However, the Supreme Court found that was not enough.
[T]here remains a risk of chilling that is not completely eliminated
by mens rea requirements; a speaker might still be worried about being
prosecuted for a careless false statement, even if he does not have the
intent required to render him liable. And so the prohibition may be
applied where it should not be applied, for example, to bar stool
braggadocio or, in the political arena, subtly but selectively to
speakers that the Government does not like.
Id. (emphasis supplied).

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Here, in this case, notwithstanding the statutory mens rea requirements, the
chilling effect is more powerful, because the falsehoods concern politics, and even the
truthful speaker is subject to substantial burdens and costs from the OEC proceedings,
even if ultimately acquitted. Moreover, the fact that the speaker’s subjective knowledge
bears on the liability actually becomes a basis for broad and hugely burdensome
discovery into the speaker’s political communications and affiliations, such as strategic
discussions with political parties, other candidates, or campaign allies. This type of
discovery has a significant chilling effect. Perry v. Schwarzenegger, 591 F.3d 1147,
1160 (9th Cir. 2010) (“The compelled disclosure of political associations can have just
such a chilling effect”).
Defendants argue next that the law is narrowly tailored because the OEC provides
a number of procedural safeguards to ensure that legitimate speech is protected.
However, in practice, these procedural safeguards actually exacerbate the statute’s
chilling effect because, for example, discovery often takes place in the critical days
before the election, which distracts the speaker from its advocacy.
Defendants also argue that Ohio’s law is narrowly tailored because it is limited
only to false statements that are subjectively made “to affect the outcome of the
campaign.” However, every public statement about a candidate during an election
campaign is made with that intent, or could easily be characterized as such, which further
supports a finding that Ohio’s false-statements laws “ranges very broadly.” Alvarez, 132
S. Ct. at 2555.

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Nothing in Ohio’s law restricts it to “material” falsehoods or those that
“succeeded” in misleading voters or causing electoral harm. In fact, the law applies not
only to the speaker of the false statement but also to commercial intermediates like the
company that was supposed to erect SBA List’s billboard in 2010. See Ohio Rev. Code
§ 3517.21(B)(10) (forbidden to “[p]ost, publish, circulate, distribute, or otherwise
disseminate” false statement).
Speaking the truth in response to the lie, called “counterspeech” by lawyers and
courts, is a less restrictive yet equally effective means to prevent voter deception
about candidates. “The remedy for speech that is false is speech that is true. This is
the ordinary course in a free society. The response to the unreasoned is the rational; to
the uninformed, the enlightened; to the straight-out lie, the simple truth.” Alvarez, 132
S. Ct. at 2550 (emphasis supplied).
Here, Defendants have not proffered any facts that support a finding that the
public requires the Government’s help in determining the veracity of political rhetoric.
Indeed, instead of limiting the OEC to “truth-declaring” functions, the political falsestatements laws are inherently coercive, because they are specifically designed to
suppress speech by punishing speech determined by the Government to be false.
While this Court is not convinced, especially in the wake of Citizens United v.
Fed. Election Comm’n, 558 U.S. 310 (2010), that counterspeech will always expose lies,
Ohio’s political false-statements laws do not provide a framework under which the OEC
can remedy this issue, because the OEC cannot issue a final determination regarding the
truth or falsity of a last-minute attack ad prior to an election. Moreover, given the
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complexity of some political statements, it is entirely possible that a candidate could
make a truthful statement, yet the OEC would determine in a probable cause finding a
few days before an election that the statement is false, penalizing the candidate for
speaking the truth and chilling further truthful speech.
We can all agree that lies are bad. The problem is, at least with respect to some
political speech, that there is no clear way to determine whether a political statement is a
lie or the truth, and we certainly do not want the Government (i.e., the OEC) deciding
what is political truth anyway, for fear that the Government might persecute those who
criticize the Government or its leaders. Ultimately, whether or not it is possible to create
a system by which impartial citizens could identify lies from the truth is unclear. What
is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is
inherently flawed.
Accordingly, the Court finds that Ohio’s political false-statements laws are more
burdensome than necessary to accomplish their alleged objectives. Ohio Revised Code
Sections 3517.21(B)(9)-(10) do not satisfy strict scrutiny. Therefore, Plaintiffs have
established success on the merits.
c.

Facial Relief

Finally, Defendants argue that even if Ohio’s political false-statements laws are
unconstitutional, they should not be invalidated on their face, because in some
applications they would be constitutional.
This Court acknowledges that “[a] facial challenge to a law is no small matter.”
Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009) (emphasis
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supplied). “At stake is not an attempt to invalidate the law in a discrete setting but an
effort to leave nothing standing, to invalidate the law in each of its applications, to take
the law off the books completely.” Id. (emphasis supplied). This “momentous and
consequential” relief is an “exceptional remedy.” Speet v. Schuette, 726 F.3d 867, 872
(6th Cir. 2013). However, when a statute fails the applicable level of scrutiny, it
invalidates the law in its entirety. See, e.g., Alvarez, 132 S. Ct. at 2551 (plurality) (ruling
that Stolen Valor Act as a whole “infringes upon speech protected by the First
Amendment”); Entm’t Merchs. Ass’n., 131 S. Ct. at 2742 (affirming facial invalidation of
law restricting violent video games); Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2666,
2672 (2011) (accepting plaintiffs’ “facial” challenge because the statute as a whole failed
strict scrutiny).
Within the First Amendment context, the plaintiff has the burden to show that the
statute is overbroad. Speet, 726 F.3d at 872. A law is overbroad when “a substantial
amount of protected speech both in an absolute sense and relative to [the statute’s] plainly
legitimate sweep” is impinged. Id. An over-breadth challenge states that, “in all its
applications,” the statute directly restricts protected speech and is not tailored to serve a
compelling interest. Id. at 873. “[T]he as-applied challenges when the statute on its face,
and therefore in all its applications, falls short of constitutional demands.” Id. When a
statute does not reach a substantial amount of protected speech, the over-breadth
challenge fails. Id. To determine whether a statute is overbroad, the courts must construe
the statute in order to know what the statute covers. Id. In construing the statute, this

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Court must use “every reasonable construction … to save a statute from
unconstitutionality.” Gonzales v. Carhart, 550 U.S. 124, 153 (2007).
Defendants suggest that because defamation and fraud are unprotected by the First
Amendment, Ohio’s law could be constitutionally applied to defamatory or fraudulent
statements. However, the statute is not limited to such statements; it also applies to
negative but non-defamatory statements, positive false statements that do not defame, and
statements that cause no harm. Accordingly, the statute “requires rewriting, not just
reinterpretation.” Stevens, 130 S. Ct. at 1592 (emphasis supplied). And this Court cannot
rewrite the statute “to conform it to constitutional requirements.” Virginia v. Am.
Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988). That is the job of the Legislature.
B.

Irreparable Harm

In considering imposition of an injunction, courts must consider whether the
plaintiff will suffer irreparable injury without the injunction. Certified Restoration,
511 F.3d at 550. “To demonstrate irreparable harm, the plaintiffs must show that …
they will suffer actual and imminent harm rather than harm that is speculative or
unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). Harm is
irreparable if it cannot be fully compensated by monetary damages. Overstreet, 305 F.3d
at 578.
The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976).
If a constitutional right is being threatened or impaired, a finding of irreparable injury is
mandated. Bonnel v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). See, e.g., Hillside
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Productions, Inc. v. Duchane, 249 F.Supp.2d 880, 900 (E.D. Mich 2003) (where a
plaintiff’s procedural due process rights were likely violated, a finding of irreparable
harm should follow as a matter of law). Here, where Plaintiffs have evidenced that Ohio
Revised Code Sections 3517.21(B)(9) and 3517.21(B)(10) are unconstitutional, a finding
of irreparable harm is implicit.
C.

Substantial Harm to Others or the Public

The final factor in the injunctive relief analysis is whether granting the injunction
would cause harm to others and/or serve the public interest. “The irreparable injury [the
plaintiffs] will suffer if their motion for injunctive relief is denied must be balanced
against any harm which will be suffered by [others] as a result of the granting injunctive
relief.” Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982).
The Supreme Court stated this summer that “denying prompt judicial review
would impose a substantial hardship on [SBA], forcing [it] to choose between refraining
from core political speech on the one hand, or engaging in that speech and risking costly
Commission proceedings and criminal prosecution on the other.” SBA List, 134 S. Ct. at
2347. Given that the 2014 elections are less than two months away, this Court’s failure
to resolve promptly the question of injunctive relief would compel SBA to make the
Hobson’s choice the Supreme Court foretold (i.e., “refrain[] from core political speech …
or engage[] … in that speech and risk[]… criminal prosecution”). Id.
And “it is always in the public interest to prevent the violation of a party’s
constitutional rights.” G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d
1071, 1079 (6th Cir. 1994). See also Dayton Area Visually Impaired Persons, Inc. v.
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Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (that is, “the public as a whole has a
significant interest in … protection of First Amendment liberties.”).
Accordingly, in balancing the factors, the Court finds that they weigh heavily and
determinatively in Plaintiffs’ favor. Furthermore, given that there are no outstanding
factual issues that need to be resolved, the Court sees no reason to delay issuing a
permanent injunction.
IV.

CONCLUSION

For these reasons, Plaintiffs’ motions for a preliminary injunction (Docs. 120, 121)
and for summary judgment (Doc. 126) are GRANTED. The Court PERMANENTLY
ENJOINS the Ohio Elections Commission and its members from enforcing Ohio’s
political false-statements laws, i.e., Ohio Revised Code Sections 3517.21(B)(9)-(10).
Defendants’ cross-motion for summary judgment (Doc. 134) is DENIED.
The Clerk shall enter judgment accordingly by separate entry, whereupon this
Court’s decision shall be a final, appealable Order, and the Clerk shall terminate this case
in this Court.7
IT IS SO ORDERED.
Date: September 11, 2014

s/ Timothy S. Black
Timothy S. Black
United States District Judge

7

Federal Rule of Civil Procedure 65(c) (“no restraining order or preliminary injunction shall issue except
upon the giving of security by the applicant”) applies only to temporary restraining orders or preliminary
injunctions. Here, the Court is entering a permanent injunction and therefore Rule 65(c) does not apply
and no bond is required. See also Ty, Inc. v Publ’ns Int’l Ltd., 292 F.3d 512, 516 (7th Cir. 2002).

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