Case: 1:10-cv TSB Doc #: 8 Filed: 10/19/10 Page: 1 of 22 PAGEID #: 369 IN THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 1 of 22 PAGEID #: 369 IN THE U.S. DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION SUSAN B. ANTHONY LIST Plaintiff v. CASE NO. 1:10-cv-00720 REP. STEVE DRIEHAUS, et al., Judge Timothy S. Black Respondent MEMORANDUM CONTRA OF DEFENDANTS OHIO ELECTIONS COMMISSION MEMBERS AND ITS EXECUTIVE DIRECTOR TO PLAINTIFF S MOTION FOR TEMPORARY RESTRAINING ORDER This case presents a classic set of circumstances requiring federal abstention under Younger v. Harris, 401 U.S. 37 (1971). Plaintiff s Complaint against Defendants individual members of the Ohio Elections Commission and its Executive Director (collectively, the Commission ) is an attempt to have this Court not only interfere with an ongoing state proceeding but also pre-determine its outcome. If the Court were to grant any of Plaintiff s requested relief, the Court would be lifting this case out of the state court system before the Commission even fully adjudicates it. This Complaint should be barred by either Younger or principles of federalism. In any case, this Court should not exercise jurisdiction over the subject matter of Plaintiff s federal complaint. In the alternative, if the Court does not abstain, the Court should deny Plaintiff s motion for temporary restraining order and preliminary injunction because Plaintiff has failed to

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 2 of 22 PAGEID #: 370 demonstrate a likelihood of success on the merits. First, nothing in the First Amendment gives a lobbyist or anyone else a constitutional right to spread false information during a campaign, and the Sixth Circuit has already determined that Ohio s false statement laws are constitutional. Second, even if this Court determines that Plaintiff may succeed on the merits, the limited harm that Plaintiff may sustain by participating in the Commission proceedings is outweighed by the substantial harm to the State and the Ohio public if Plaintiff is successful in enjoining application of Ohio s false statement laws during election season. For these reasons, explained more fully herein, the Court should deny Plaintiff s motion for temporary restraining order and preliminary injunction. STATEMENT OF THE FACTS Defendant Rep. Driehaus filed a complaint against Plaintiff with the Commission alleging that an advertisement by Plaintiff violated two of Ohio s false statement laws, R.C. 3517.21(B)(9) & (10). (Complt. at 14.) In its answer, Plaintiff asserted that these two statutes are unconstitutional under the First and Fourteenth Amendments. (Id. at 19.) On October 14, 2010, a probable cause panel of the Commission determined that there was probable cause of a violation R.C. 3517.21(B)(9) & (10). (Id.) The Commission set an administrative hearing for October 28, 2010, before the full Commission to determine the merits of Rep. Driehaus complaint. (Probable Cause Disposition, attached as Ex. A.) On October 18, 2010, Plaintiff filed this federal lawsuit raising the same arguments it is raising in the action before the Commission: namely, Ohio s false statement laws are unconstitutional. 2

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 3 of 22 PAGEID #: 371 LAW AND ARGUMENT I. This Court Should Not Exercise Jurisdiction Over Plaintiff s Complaint. A. This Court Should Abstain Under Younger v. Harris. A federal district court has discretion to abstain from exercising jurisdiction over a claim where its resolution in federal court would offend principles of comity and federalism by interfering with an ongoing state proceeding. In Younger v. Harris, 401 U.S. 37 (1971), the United States Supreme Court held that a federal court should not enjoin an ongoing state criminal proceeding. In doing so, the Court recognized two distinct bases for its ruling. First, under basic principles of equity jurisdiction, a court should not act when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. Second, under Our Federalism, a federal court anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. Id. at 44. Younger and its progeny have created a three-part test to determine whether a federal court must abstain during the pendency of a state proceeding: (1) whether the underlying proceedings constitute an ongoing judicial proceeding, (2) whether the proceedings implicate important state interests, and (3) whether there is an adequate opportunity in the state proceedings to raise a constitutional challenge. Gilbert v. Ferry, 401 F.3d 411, 419 (6th Cir. 2005). All three of these elements are met here. First, because the Commission has scheduled a hearing involving Rep. Driehaus and Plaintiff for October 28, 2010, there are ongoing state judicial proceedings. Second, the Commission vindicates important state interests. The Commission, by ensuring that candidates do not issue false statements in their campaign materials, furthers Ohio s interest in maintaining 3

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 4 of 22 PAGEID #: 372 a robust, but truthful electoral process and protects the voters, who may not have the means of verifying certain statements, from blatant false statements regarding candidates or issues. See, e.g., Walter v. Cincione, No. C-2-00-1070, 2000 WL 1505945, at *3 (S.D. Ohio Oct. 6, 2000) (attached as Ex. 10.) (finding that maintaining truth in the electoral process in a race for a U.S. Congressional Representative was an important state interest ). Third, Ohio law provides Plaintiff an adequate opportunity to raise its constitutional claims. Plaintiff has the right to assert its constitutional defenses to the Commission and, if necessary, on appeal of a Commission decision. Specifically, R.C. 119.12 expressly permits a party to raise constitutional issues in an appeal from a Commission s decision to the common pleas court decision and to the Tenth District Court of Appeals. See, e.g., R.C. 119.12 (stating that an appeal may be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency ). Further, an appellant party may seek discretionary review by the Ohio Supreme Court and/or the United States Supreme Court. Thus, courts of Ohio provide Plaintiff the opportunity to raise its constitutional claims. 1 The facts here present a textbook example of when Younger abstention should apply. Not only are the three elements satisfied, but Plaintiff plainly requests that this Court enjoin the Commission from proceeding against Plaintiff. Plaintiff, however, has no right to use this Court to force a state administrative body how it must decide Rep. Driehaus complaint. The Court should abstain under Younger. 1 For two recent examples of cases in which the constitutional challenges made by respondents in Commission cases were ultimately addressed by the Ohio Supreme Court or state appellate courts, see McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139 (2000) (stating that [t]he cartoon drawing at the heart of this case presents this court with an opportunity to clarify the relationship between Ohio s election laws and the constitutional guarantees of free speech ); Ohio Democratic Party v. Ohio Elections Comm., No. 07AP-876, 2008 Ohio App. LEXIS 3553 (10 th Dist. 2008) (determining whether R.C. 3517.21(B)(1) is unconstitutional on its face or as applied). 4

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 5 of 22 PAGEID #: 373 1. The Sixth Circuit has applied Younger to prevent litigants from circumventing on-going Commission proceedings under these exact set of facts. This is not the first time a party has attempted to circumvent a Commission proceeding through the federal courts. Under facts remarkably similar to the facts here, the Sixth Circuit and three courts in the Southern District of Ohio have applied Younger to abstain from hearing a federal complaint similar to Plaintiff s here. These courts have held that the remedy for an alleged error in law by the Commission (either actual or anticipated) is to appeal that decision through the state court system, not to obtain a declaratory judgment or injunctive relief from a federal court. In Citizens For A Strong Ohio v. Marsh, No. 04-3112, 2005 U.S. App. LEXIS 67 (6th Cir. Jan. 3, 2005), an initial complaint was filed against Citizens For A Strong Ohio ( Citizens ) at the Commission for an alleged violation of Ohio campaign finance laws, including Ohio s false statement law. Id. at *3. Before the administrative hearing, the Commission issued a subpoena to Citizens seeking records of donors. Id. at *5. Citizens refused to comply and instead filed an enforcement action in the Ohio courts, which ordered Citizens to produce the donor records. Id. Citizens then filed suit in federal court seeking a judgment declaring that the Commission s application of Ohio election laws violated the First Amendment. Id. Citizens further alleged that the Commission s adverse decisions interpreting Ohio election law were preventing them from engaging in future political activity. Id. The district court dismissed the federal case under Younger, and on appeal, the Sixth Circuit agreed. Id. at *6. The Sixth Circuit expressly held that the three abstention elements were met: (1) the parties to the federal litigation were subject to ongoing hearings before the [Commission] ; (2) Ohio has an important state interest in overseeing elections; and (3) litigants before the Commission have an adequate opportunity to raise constitutional claims. Id. at *7-11. 5

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 6 of 22 PAGEID #: 374 According to the Sixth Circuit, any declaration or injunction by a federal court would interfere with the current Commission action, and such interference is clearly inappropriate under Younger and its progeny. Id. at *20-21. Most recently, this Court dismissed a similar federal complaint against the Commission based on Younger abstention in Krikorian v. Ohio Elections Commission, No. 1:10-cv-00103 (S.D. Ohio Oct. 19, 2010) (Dlott, C.J.), attached as Ex. B. In that case, a candidate filed a federal complaint against the Commission challenging the constitutionality of R.C. 3517.21(B)(10) on First Amendment grounds after the Commission determined that the candidate published a false statement. Because the candidate had the opportunity to file a state court appeal of the Commission decision, this Court found the Commission s Younger argument well-taken and dismissed the federal complaint. Id. at 6. A similar attempt to circumvent the Commission was rejected by the Southern District of Ohio in Walter v. Cincione, No. C-2-00-1070, 2000 WL 1505945 (S.D. Ohio Oct. 6, 2000) (attached as Ex. 8). In that case, the Commission determined that candidate Randy D. Walter s use of the phrase Independent Democrat was a false statement under R.C. 3517.21(B) in a campaign for the office of U.S. House of Representatives. Id. at *1. Rather than appealing through the state court process prescribed by Ohio law, Mr. Walter filed a First Amendment challenge in federal court seeking declaratory and injunctive relief. Again, the district court denied Mr. Walter s motion, holding that abstention is required under Younger. Id. at *4. Finally, in Chamber of Commerce of the United States v. Ohio Elections Commission, 135 F. Supp. 2d 857 (S.D. Ohio 2001), this court again applied Younger in a case involving the Commission. An elections complaint was filed against the Chamber of Commerce, and the Chamber subsequently filed a First Amendment challenge in federal court requesting the court to 6

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 7 of 22 PAGEID #: 375 declare portions of Ohio s false statement law and another Ohio campaign finance statute facially unconstitutional. 135 F. Supp. 2d at 859. The court stayed the federal action under Younger, pending ultimate resolution of the underlying Commission proceeding, including all appeals through the courts of Ohio. Id. at 870. This Court is bound by the Sixth Circuit s legal applications in Citizens and should follow its decisions in Walter, Chamber of Commerce, and Krikorian to reject Plaintiff s attempt to circumvent the current Commission proceedings. 2. Extraordinary circumstances do not preclude Younger abstention. Plaintiff requests that this Court ignore Sixth Circuit precedent in Citizens for Strong Ohio and, instead, refrain from abstaining because of alleged extraordinary circumstances. (Pl. Memo at 7.) As support, Plaintiff cites to Blankenship v. Blackwell, 341 F. Supp. 2d 911 (S.D. Ohio 2004). That case, however, actually recognizes and supports federal abstention if there is an on-going Commission proceeding, and, regardless, the relevant facts upon which the court relied in Blankenship to refrain from abstaining are not present here. In Blankenship, the plaintiffs filed an action in the Ohio Supreme Court seeking a writ to compel former Ohio Secretary of State Kenneth Blackwell to place a candidate s name on the ballot. 341 F. Supp. 2d at 916. The plaintiffs subsequently filed a federal law suit against Secretary Blackwell challenging the constitutionality of a state residency requirement for petition circulators. Id. at 916-17. Secretary Blackwell argued that the federal court should abstain because the Ohio Supreme Court was reviewing a similar issue. Id. at 919. The federal court refused to abstain, holding that Younger does not require abstention merely because a federal plaintiff alleges a constitutional violation in federal court that involves a similar claim filed in state court. Id. 7

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 8 of 22 PAGEID #: 376 The court in Blankenship, however, expressly recognized that abstention is appropriate while there are on-going Ohio Elections Commission proceedings. Id. at 919 n.9 (explaining why abstention appropriate in Chamber case). As explained by the Court, because the Commission is cognizant of the relevant First Amendment standards and because Commission proceedings are essentially enforcement action[s], Younger abstention is appropriate. Id. Moreover, the alleged extraordinary circumstances in Blankenship are not present here. Plaintiff claims that, similar to the facts in Blankenship, Rep. Driehaus campaign involves a federal election, and Plaintiff s Complaint asserts exclusively federal claims therefore, this Court should exercise jurisdiction as in Blankenship. (Pl. Memo at 7.) However, the Walter and Krikorian cases also involved a campaign for U.S. Representative, and both Citizens for Strong Ohio and Chamber involved exclusively federal claims. Thus, the fact that this case involves a federal election and federal claims is not relevant to abstention. The distinguishing fact between the Commission cases and Blankenship is that the latter is a ballot-access case. The court exercised jurisdiction based on its perceived necessity to decide whether to place a candidate s name on the ballot before the election. Here, the Commission s proceedings are not keeping any candidate off of the ballot for the November election nor has the Commission even enjoined any of Plaintiff s speech related to the November election. The Commission is simply attempting to exercise its statutory duty to determine whether a certain political advertisement allegedly published by Plaintiff violates Ohio s false statement law. Accordingly, Plaintiff fails to demonstrate why this Court should break from established precedent and exercise jurisdiction over a federal case that would enjoin a pending Commission proceeding. 8

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 9 of 22 PAGEID #: 377 B. Plaintiff is not entitled to declaratory relief as a means of circumventing an ongoing state court proceeding. Even if the Court finds that Younger abstention does not apply, the Court should nevertheless decline from hearing this case because Plaintiff is asking for a premature federal court declaration that would violate principles of federalism and intrude on the courts of Ohio s jurisdiction to review Commission decisions. The Declaratory Judgment Act provides that a court may declare the rights and other legal relations of any interested party seeking such declaration. 28 U.S.C. 2201(a) (emphasis added). As such, the scope of jurisdiction granted to the federal courts by this provision is discretionary, and not mandatory. Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). The Declaratory Judgment Act is an enabling Act, which confers discretion on the courts rather than an absolute right upon the litigant. Public Serv. Comm n of Utah v. Wycoff, 344 U.S. 237, 241 (1952). In each case, the propriety of declaratory relief will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power. Id. at 243. In this case, Plaintiff requests this Court to use its discretion to interfere with a Commission proceeding. That proceeding involves the exact issues that Plaintiff now seeks to bring before this Court. Under these circumstances, this Court should decline this invitation to engage in gratuitous interference with a state court action. Wilton, 515 U.S. at 283 (quoting Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 495 (1942)). When a district court is asked to issue declaratory relief in a case that involves parallel state court proceedings, the court must assess five factors before exercising its jurisdiction to entertain an action for declaratory judgment: (1) whether the judgment would settle the controversy; 9

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 10 of 22 PAGEID #: 378 (2) whether the declaratory judgment action would serve a useful purpose in clarifying the legal relations at issue; (3) whether the declaratory remedy is being used merely for the purpose of procedural fencing or to provide an arena for a race for res judicata; (4) whether the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction; and (5) whether there is an alternative remedy that is better or more effective. Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 968 (6th Cir. 2000). Under this test, this Court should decline to exercise its jurisdiction at this time. This action, brought by a party to an ongoing proceeding before the Commission, can only be seen as an attempt to circumvent the Commission and/or to use the federal court to review decisions issued by the Commission. Without a doubt, this is exactly the type of procedural fencing and/or race for res judicata that counsels against the exercise of federal jurisdiction. Not only do these facts weigh heavily in favor of declining jurisdiction under the third prong of Roumph, but they also point out exactly why, in this instance, the use of a declaratory action would increase the friction between our federal and state courts and improperly encroach on state jurisdiction. Id. By filing this action, Plaintiff asks this Court to pre-determine an issue before a state agency and to tell that agency, and the courts of Ohio, how to apply the law. Such a preemptory ruling offends the very principles of federalism set forth in Wycoff. The Court should not entertain Plaintiff s request. II. Plaintiff Has Failed To Demonstrate Factors That Warrant The Court s Use of Its Equitable Powers. In determining whether to grant injunctive relief, a court must consider the following factors: (1) Plaintiff s likelihood of success on the merits; (2) whether Plaintiff will suffer irreparable injury if the injunction is not granted; (3) whether third-parties will suffer substantial harm if the injunction is issued; and (4) whether the public interest will be served by granting the 10

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 11 of 22 PAGEID #: 379 injunction. Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009). Plaintiff has not met its burden based on the weighing of any of these factors. The proof required to obtain a temporary restraining order is much more stringent than the proof required to survive a summary judgment motion. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). A temporary restraining order 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. Jones, 569 F.3d at 265 (citations omitted). A. Plaintiff cannot demonstrate a likelihood of success on the merits of any of its claims. 1. As the Sixth Circuit held in Pestrak v. Ohio Elections Commission, Ohio s false statement laws are facially constitutional. In Pestrak v. Ohio Elections Commission, 926 F.2d 573 (6 th Cir. 1991), the Sixth Circuit rejected the identical argument that Plaintiff makes here and held that Ohio s false statement laws are facially constitutional. The plaintiff in Pestrak argued that Ohio s false statement laws are unconstitutional because their basic purpose is to distinguish among types of political speech based on their content. 926 F.2d at 577. This argument, according to the Sixth Circuit, is untenable because false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth. Id. (citing Garrison v. Louisiana, 379 U.S. 64 (1964)). Thus, because Ohio s false statement laws, on their face, are directed only at speech that is not constitutionally protected, they are facially constitutional. Id.; see also Briggs v. Ohio Elections Commission, 61 F.3d 487, 494 (6 th Cir. 1995) (affirming that Ohio s false statement laws pose no First Amendment difficulty so long as it regulates only false speech made knowing of the falsehood or in reckless disregard for the truth ). Although Plaintiff admits that this Court is bound by Pestrak, Plaintiff also appears to be requesting that this Court overrule Pestrak because it is in direct conflict with Supreme Court 11

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 12 of 22 PAGEID #: 380 and other circuit precedent. (Pl. Memo at 11.) Plaintiff, however, fails to identify this Supreme Court or other circuit authority and, instead, only cites to a Washington Supreme Court decision and a divided Wisconsin Supreme Court decision. Not only are the Washington and Wisconsin cases distinguishable on the court s reasoning and with the statutes involved but such authority does not come close to satisfying the burden that Plaintiff must demonstrate to be entitled to extraordinary relief. Pestrak is controlling. 2. R.C. 3517.21(B)(9) & (10) are facially constitutional. Plaintiff claims that R.C. 3517.21(B)(9) & (10) are facially unconstitutional for additional reasons that were not addressed in Pestrak. (Pl. Memo at 11-15.) Plaintiff is not likely to succeed on any of its facial claims. As an initial matter, the U.S. Supreme Court has expressed strong disapproval of facial challenges where, as here, a plaintiff asks the court to speculate about hypothetical or imaginary cases. Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1190 (2008). Plaintiff has not been found in violation of any Ohio law or even had its hearing; thus, its federal claim is speculative. Regardless, Plaintiff can only succeed on a facial challenge by establish[ing] that no set of circumstances exists under which the [statute] would be valid, i.e. that the law is unconstitutional in all of its applications. Id. at 1190 (internal citations omitted). At stake on a facial challenge 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. Connection Distributing Co. v. Holder, 557 F.3d 321, 335 (6th Cir. 2009). Even in free speech cases, facial invalidation of a statute remains strong medicine that is not to be casually employed. Id. (quoting United States v. Williams, 128 S. Ct. 1830, 1838 (2008). Only with these principles in mind may the Court analyze the merits of Plaintiff s facial challenges to the constitutionality of Ohio s false statement laws. 12

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 13 of 22 PAGEID #: 381 a. R.C. 3517.21(B)(9) incorporates an actual malice standard. Plaintiff claims that R.C. 3517.21(B)(9) is facially unconstitutional because it fails to incorporate the actual malice standard. (Pl. Memo at 11-12.) Plaintiff incorrectly interprets Ohio law. The plain language of R.C. 3517.21(B) uses a knowingly standard. The Sixth Circuit has recognized that because most of the parts of [Ohio s false statement law] affect only the knowing making of false statements including R.C. 3517.21(B)(9) [t]hese portions of the statute clearly come within the Supreme Court holdings in Garrison v. Louisiana, 379 U.S. 64 (1964), and New York Times v. Sullivan, 376 U.S. 254 (1964). Pestrak, 926 F.2d at 577. Moreover, R.C. 3517.155(D) requires that the Commission shall make any finding of a failure to comply with or a violation of law in regard to a complaint that alleges a violation of... division (A) or (B) of section 3517.21... by clear and convincing evidence. Thus, by operation of R.C. 3517.155, the Commission may only find a violation of R.C. 3517.21(B)(9) if there is clear and convincing evidence that a person knowingly and with intent to affect the outcome of an election make[s] a false statement concerning the voting record of a candidate or public official. Ohio courts have recognized that by incorporating this clear and convincing standard in R.C. 3517.21(B) with the knowingly standard, Ohio s false statement law (including R.C. 3517.21(B)(9)) does not apply to circumstances only involving negligence or even recklessness. Ohio Democratic Party v. Ohio Elections Commission, No. 07AP-876, 2008 Ohio App. LEXIS 3553, at *13 (Ohio Ct. App. Aug. 21, 2008). Thus, R.C. 3517.21(B)(9) incorporates the actual malice standard and is facially constitutional. b. R.C. 3517.21(B)(9) & (10) are not unconstitutionally vague. Plaintiff claims R.C. 3517.21(B)(9) & (10) are (1) vague under Buckley v. Valeo, 424 U.S. 1 (1976), and (2) vague because the Ohio statutes allegedly depend on the mercy of the listener. (Pl. Memo at 14, 17.) A law may be impermissibly vague for either of two 13

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 14 of 22 PAGEID #: 382 independent reasons: first, if it fails to afford a person of ordinary intelligence a reasonable opportunity to know what is prohibited, (Grayned, 408 U.S. at 108-09); second, if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 733 (2000). Plaintiff fails to demonstrate that the statues are facially vague. Plaintiff claims that the phrase with intent to affect the outcome of such campaign in R.C. 3517.21(B)(9) is unconstitutionally vague under the reasoning of Buckley, which held that the phrase expenditure... relative to a clearly identified candidate was vague. Buckley, 424 U.S. at 41 (emphasis added). Under the same Buckley reasoning, Plaintiff claims that the phrase if the statement is designed to promote the election, nomination, or defeat of a candidate in R.C. 3517.21(B)(10) is unconstitutionally vague. Buckley, however, involved a clearly distinguishable statute. Unlike the statute in Buckley, R.C. 3517.21(B) includes a scienter requirement: a person must knowingly and with intent to affect the outcome of such campaign make or publish the false statement. R.C. 3517.21(B)(9). In addition, subsection (B)(10) requires that the publisher either know the statement is false or act with reckless disregard of whether it was false or not. The Supreme Court has made clear that scienter requirements alleviate vagueness concerns. Gonzales v. Carhart, 550 U.S. 124, 149 (2007); see also Colautti v. Franklin, 439 U.S. 379, 395 (1979) ( This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea ). Moreover, unlike in Buckley, each of the terms and phrases in R.C. 3517.21(B) has a statutory or common understanding, and the statute gives fair notice to whom it is directed. In Buckley, the Supreme Court was concerned that the phrase relative to a clearly identified candidate was so indefinite that it failed to clearly mark the boundary between permissible 14

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 15 of 22 PAGEID #: 383 and impermissible speech. 424 U.S. at 41. R.C. 3517.21(B) is not similarly indefinite; the statute uses phrases such as knowingly, false statement, knowing the same to be false or with reckless disregard of whether it is false or not all of which give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. R.C. 3517.21(B) has survived similar constitutional challenge for decades, and its constitutionality has been affirmed on several occasions by the Sixth Circuit. The terms and phrases in R.C. 3517.21(B) are not unconstitutionally vague. Plaintiff also argues that R.C. 3517.21(B)(9) & (10) are vague because they depend on what a particular hearer believes is implied by it and a speaker is wholly at the mercy of the listener. (Pl. Memo at 14, 17.) Application of the plain language in R.C. 3517.21(B) does not depend on what a particular hearer subjectively believes is implied by the statement. In addition, as required by Ohio law, the Commission uses the reasonable reader standard to determine the falsity of a statement under R.C. 3517.21(B). As explained by the Ohio Supreme Court, the Commission must assess the common meaning ascribed to the words by an ordinary reader in order to determine whether a statement is false. McKimm v. Ohio Elections Commission, 729 N.E.2d 364, 371 (Ohio 2000). Thus, the test for determining whether a statement is false depends on the reasonable reader s perception of the statement not on the perception of publisher or a particular hearer. Id. Accordingly, application of R.C. 3517.21(B) is not dependent on the implications of the listener, and Plaintiff has not demonstrated that the statutes are unconstitutionally vague. c. R.C. 3517.21(B)(9) & (10) are not unconstitutionally overbroad. In its Supplemental brief, Plaintiff claims that R.C. 3517.21(B)(9) & (10) are unconstitutionally overbroad because they are not limited to express advocacy and may reach 15

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 16 of 22 PAGEID #: 384 issue advocacy. (Pl. Supp. Memo. at 2-3.) To succeed on a facial overbreadth claim, a plaintiff must demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally. Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 532 (6th Cir. 2009) (citing N.Y. State Club Ass n v. City of New York, 487 U.S. 1, 14 (1988)). The text and actual application of R.C. 3517.21(B)(9) & (10) only reach false statements. Again, the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. Garrison, 379 U.S. at 75; see also Pestrak, 926 F.2d at 577 ( [F]alse speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth. ). Thus, regardless of whether Plaintiff s speech is express advocacy or issue advocacy, if it is false and made knowingly or with reckless disregard, the speech is not constitutionally protected. Because R.C. 3517.21(B)(9) & (10) only apply to false speech in political campaigns, the statutes cannot be overbroad. Accordingly, Plaintiff has failed to demonstrate that there are additional reasons to overrule Pestrak and declare R.C. 3517.21(B)(9) & (10) facially unconstitutional. 3. R.C. 3517.21(B)(9) & (10) are not unconstitutional as applied to lobbyists. Plaintiff asserts that R.C. 3517.21(B)(9) & (10) which only prohibit false statements in political campaigns are unconstitutional as applied to lobbyists. (Pl. Memo at 14-15, 17.) Plaintiff, however, has failed to cite any authority for its position that lobbyists unlike other citizens have a constitutional right to make false speech. Thus, because R.C. 3517.21(B)(9) & (10) only prohibit false speech, and false speech is not constitutionally protected, there can be no unconstitutional application to lobbyists. 16

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 17 of 22 PAGEID #: 385 To the extent that Plaintiff is arguing that application of R.C. 3517.21(B)(9) & (10) to Plaintiff s alleged opinion here about Rep. Driehaus would be unconstitutional, Plaintiff s preenforcement, as-applied challenge is not ripe for review. The Commission has not yet determined whether Ohio s false statement law even applies to Plaintiff s statement. Moreover, the Commission and Ohio law protect opinions, which are distinguishable from false statements. McKimm, 729 N.E. 2d at 371. Ohio s test for distinguishing a statement of fact from an opinion depends on the reasonable reader s perception of the statement. Id. (explaining four factor test). Thus, Ohio s false statement law will not be applied to statements of opinion. Plaintiffs will not succeed, therefore, on their claim that R.C. 3517.21(B)(9) & (10) are unconstitutional as applied to lobbyists who are expressing opinions. 4. The discovery rules in Ohio Election Commission regulations do not render R.C. sections 3517.21(B)(9) & (10) unconstitutional. With a few minor exceptions, parties to a Commission hearing are subject to the same discovery and evidentiary rules and protections available to every other civil litigant in Ohio. The Ohio Rules of Civil Procedure and Ohio Rules of Evidence control proceedings before the Commission in all instances in which they are not in conflict with more specific rules of procedure outlined in the Ohio Revised Code or Administrative Rules. OAC 3517-1-0. Specifically, Ohio Civil Rules 26(A), 2 (B)(1), (3) and (4), and (C)-(E); 27(A), (C)-(G); 28; 29; 30; 31; 32; 33; 34; 36 and 37 apply to proceedings before the Commission. OAC 3517-1-09. Plaintiff s argument that discovery conducted in preparation for a Commission hearing regarding alleged violations of R.C 3517.21(B)(9) & (10) affords no First Amendment protections is simply untrue. While a party may make a discovery request for documents or information related to prior expression or associations, such a request does not guarantee that 2 Except that inspection of real property and physical/mental examinations shall not be allowed. OAC 3517-1-09. 17

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 18 of 22 PAGEID #: 386 they are permitted to receive the requested discovery. Just as a party could in civil litigation, a party from whom discovery is sought may file a Civil Rule 26(C) motion for protective order with the Commission. And, just as a judge in civil proceeding, the Commission s staff attorney has the authority to make any order that justice requires to protect a person or party from annoyance, embarrassment, oppression, or undue burden or expense. OAC 3517-1-09(C); Ohio Civ. R. 26(C). Similarly, when a party requests the issuance of subpoenas or subpoenas duces tecum, compelling the attendance of a person and the production of relevant papers at a deposition or the hearing, these subpoenas are issued by the staff attorney to the Commission. The party against whom the subpoena is sought has an opportunity to file a motion to quash with the Commission. OAC 3517-1-11(B)(3). If, in the reasonable judgment of the staff attorney, the request for subpoena is considered to be overly burdensome or requested solely for the purpose of harassment or delay, the subpoena shall not be issued. Id. Contrary to the allegations in the Complaint, nothing in the Commission s discovery process requires or compels the disclosure of past expressions and associations. (Complt. 46 and 47.) Should a party object to a discovery request on First Amendment grounds, or any other grounds, it has the same protections that any civil litigant would have to protect itself. Plaintiff has failed to show that the Commission s discovery rules and procedures render R.C. 3517.21(B)(9) & (10) unconstitutional. Therefore, they have failed to demonstrate a likelihood of success on the merits of this claim. III. The Public Harm Outweighs Any Injury to the Plaintiff From Denying the Temporary Restraining Order. Plaintiff will not suffer any injury if its requested injunctive relief is not granted. Plaintiff has no right to make or publish false statements, and therefore it is not harmed if the Court 18

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 19 of 22 PAGEID #: 387 denies Plaintiff s request to enjoin application of Ohio s false statement laws. Second, Plaintiff s claim that the Commission has somehow chilled Plaintiff from running its billboard advertisement is wrong because the Commission has not enjoined Plaintiff from running its advertisement the Commission has not yet even determined whether Ohio s false statement laws apply to Plaintiff s advertisement. Moreover, Plaintiff has failed to demonstrate how standard discovery mechanisms have somehow prevented it from engaging in constitutionallyprotected political speech. Granting the motion, however, would cause substantial harm to the Ohio public and the State of Ohio. Plaintiff s sweeping request to enjoin all application of Ohio s false statement laws would prohibit Ohio from regulating false speech in all Ohio elections. The Commission, by ensuring that candidates do not issue false statements in their campaign materials, furthers Ohio s interests in maintaining a robust but truthful electoral process and protects the voters, who may not have the means to verify certain statements, from blatant false statements regarding candidates or issues. Ohio s interest in preserving the integrity of the election process from false statements is substantial, and the public interest is best served by truthful campaign advertisements. Finally, the factors weigh even more heavily in the State s favor here because the Commission has not actually determined that R.C. 3517.21(B) even applies to Plaintiff s advertisement. By granting Plaintiff s requested relief, the Court would be prescribing how the Commission must apply Ohio law to a dispute that has not been factually developed. CONCLUSION For the foregoing reasons, the Court should deny the Plaintiff s motion for temporary restraining order and preliminary injunction. 19

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 20 of 22 PAGEID #: 388 RICHARD CORDRAY Attorney General of Ohio s/ Erick D. Gale Erick D. Gale (0075723) Damian W. Sikora (0075224) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 T: 614-466-2872: F: 614-728-7592 erick.gale@ohioattorneygeneral.gov damian.sikora@ohioattorneygeneral.gov Counsel for Ohio Elections Commission, its Members and its Director 20

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 21 of 22 PAGEID #: 389 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on the parties to this action via the Court s electronic case filing system on this 19 th day of October, 2010. s/ Erick D. Gale Erick D. Gale (0075723)

Case: 1:10-cv-00720-TSB Doc #: 8 Filed: 10/19/10 Page: 22 of 22 PAGEID #: 390