COAST Motion for Preliminary Injunction

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SUSAN B. ANTHONY LIST,

Plaintiff,

v.

REP. STEVE DRIEHAUS, et al.,

Defendants.

:

:

:

:

:

:

:

:

:

:

Case No. 1:10-CV-720

consolidated with

Case No. 1:10-CV-754

Judge Black

COALITION OPPOSED TO

ADDITIONAL SPENDING & TAXES,

Plaintiff,

v.

OHIO ELECTIONS COMMISSION, et al.,

Defendants.

:

:

:

:

:

:

:

:

:

:

:

PLAINTIFF COAST’S MOTION

FOR PRELIMINARY INJUNCTION

Plaintiff Coalition Opposed to Additional Spending & Taxes (“COAST”) moves,

pursuant to Fed. R. Civ. P. 65, for the issuance of a preliminary injunction enjoining the

enforcement of Section 3517.21(B)(9) and Section 3517.21(B)(10) of the Ohio Revised Code by

the Ohio Elections Commission and its members. In the interest of judicial economy and

efficiency, COAST refers to and incorporates by reference the legal arguments and analysis in

Susan B. Anthony List’s Motion for a Preliminary Injunction (Doc. No. 120), as well as

COAST’s earlier Motion for Temporary Restraining Order and Preliminary Injunction (Doc.

Nos. 2 & 2-1 in Case No. 1:10-CV-754). COAST tenders the following memorandum, together

Case: 1:10-cv-00720-TSB Doc #: 121 Filed: 07/01/14 Page: 1 of 7 PAGEID #: 2421

- 2 -

with the attached Declaration of Mark Miller, to supplement the arguments of the SBA List and

its earlier arguments.

MEMORANDUM IN OPPOSITION

In Susan B. Anthony List v. Driehaus, 573 U.S. ___ (June 16, 2014), the Supreme Court

held that COAST has “demonstrated an injury in fact sufficient for Article III standing,” slip op.,

at 18, and, thus, COAST, just like Susan B. Anthony List (“SBA List”), may proceed with its

pre-enforcement First Amendment challenge herein to Ohio’s false-political-speech statutes.

In connection with the forthcoming 2014 election, COAST desires, similar to SBA List,

to criticize Ohio Congresswoman Marcy Kaptur and her support of taxpayer-funded abortion

based upon her vote in favor of the Affordable Care Act (the “ACA”). Similar to the contention

of then-Congressman Driehaus before the Ohio Elections Commission that he didn’t vote for

taxpayer-funded abortion because of “an executive order clarifying and enforcing long-standing

law banning the use of federal funds for abortion services,” (Doc. No. 25-3, Exhibit C,

PageID#606), Congresswoman Kaptur has staked out a similar position in order to rationalize

her vote in favor of the Act:

Congresswoman Kaptur said she was convinced that the legislation will maintain

existing law on abortion. “We have received assurances that we will be able to

work with the Administration to assure that existing law is maintained – not to

change it in any way, but to make sure that it applies to this bill.”

(http://www.kaptur.house.gov/index.php?option=com_content&view=article&id=559:march-21-

congresswoman-kaptur-supports-health-care-reform&catid=44&Itemid=300330.)

And lest there be any doubt whether Congresswoman Kaptur views her vote for the ACA

any different than then-Congressman Driehaus as it relates to providing or allowing taxpayer-

funded abortions, Congresswoman Kaptur’s spokesman was reported as specifically attacking


http://www.kaptur.house.gov/index.php?option=com_content&view=article&id=559:march-21-congresswoman-kaptur-supports-health-care-reform&catid=44&Itemid=300330

http://www.kaptur.house.gov/index.php?option=com_content&view=article&id=559:march-21-congresswoman-kaptur-supports-health-care-reform&catid=44&Itemid=300330

- 3 -

the position of SBA List and, just like then-Congressman Driehaus, asserted reliance upon an

executive order to dispute the present contention of SBA List and COAST:

Steve Fought, a spokesperson for Kaptur, said the Susan B. Anthony List has a

political agenda rather than an issues agenda in their opposition to the executive

order.

“I think these so-called pro-life groups – I think their complaint is more with

who’s signing the executive order than the executive order itself,” Fought said.…

Fought stood by Obama’s executive order.

“The executive order, any way you cut it, is a good thing if you’re against federal

funding of abortion, unless you have a political agenda,” Fought said.

“Congresswoman Kaptur has been consistent in her voting pattern since she’s

been a member of Congress. And she calls it pro-family.”

(http://www.humanevents.com/2010/08/12/prolife-group-targets-vulnerable-democrats.1)

Notwithstanding Congresswoman Kaptur’s assertion that her vote for the ACA didn’t

constitute a vote for taxpayer-funded abortions, COAST directly disagrees with such a

conclusion and, instead, seeks and desires to have its voice added to the marketplace of ideas on

the issue leading up to the forthcoming election. For as extensively developed in the amicus

1 While the press release and the article from Human Events may, concededly, constitute

hearsay, this matter is presently before the Court on a motion for preliminary injunction. As the

Sixth Circuit has recognized, “a preliminary injunction is customarily granted on the basis of

procedures that are less formal and evidence that is less complete than in a trial on the merits.'"

Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.

2007) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). Furthermore, “[t]he

United States Court of Appeals for the Sixth Circuit has not explicitly stated whether hearsay

evidence may be considered in the context of a preliminary injunction hearing. This Court,

however, and other district courts within this circuit have considered such evidence, as have

numerous other circuit courts.” Damon’s Restaurants, Inc. v. Eileen K Inc., 461 F.Supp.2d 607

(S.D. Ohio 2006)(internal citations omitted); accord United States v. O’Brien, 836 F. Supp. 438,

441 (S.D. Ohio 1993)(“[t]he Federal Rules of Evidence do not apply at preliminary injunction

hearings”). And notwithstanding the foregoing, with respect to the press release, it is published

on an official governmental website and, thus, is appropriate for taking judicial notice. E.g.,

Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir.2003) (taking judicial notice of information

from official government website). If any doubt or issue actually exists with respect to these

matters, then at a preliminary injunction hearing, the presence of Congresswoman Kaptur or her

spokesman can be compelled wherein they can confirm or refute these reported positions on the

issue.


http://www.humanevents.com/2010/08/12/prolife-group-targets-vulnerable-democrats

- 4 -

brief filed in the Supreme Court by the Bioethic Ethics Fund, “assertions equating a political

candidate’s vote for the ACA with a vote for taxpayer-funded abortion are truthful.” (See amicus

brief of Bioethic Ethics Fund (attached hereto as Exhibit B), at 2.) But not only has a panel of

the Ohio Elections Commission already concluded that the SBA List stated a falsehood when it

equate a vote for the ACA with taxpayer-funded abortion, but this Court also held that SBA

List’s statements were factually false because the ACA did not directly appropriate federal funds

for the express purpose of funding abortions. See Susan B. Anthony List v. Driehaus, 805 F.

Supp. 2d 423, 435-36 (S.D. Ohio 2011). Thus, COAST presently finds itself between the Scylla

of knowingly advocating and publishing a political position which has already been declared to

be false so as to face the real and imminent risk of being subjected to proceedings under Ohio’s

false-political-speech statute and the Charybdis of simply not adding its voice to political

discussion and foregoing any participation in political debate as it relates the ACA and taxpayer-

funded abortion. But forcing COAST into such a position is clearly repugnant to basic principles

under the First Amendment.

And in addition to Congresswoman Kaptur, other candidates for public office in the

forthcoming election also have publicly expressed support for the ACA. COAST also desires to

tie these candidates’ support for the Act to supporting taxpayer-funded abortions. Thus, while

these other candidates may not have expressly “voted for” taxpayer-funded abortion (as they

were not in the 111th Congress), they have unequivocally declared their support of the ACA and,

in turn, its enabling of taxpayer-funded abortions. At present, COAST has identified two other

candidates for public office who have publicly declared their support for the ACA and for whom

COAST desires to publicize these candidates’ support for the Act and the associated taxpayer

funding of abortions:


- 5 -

Denise Driehaus, an Ohio state representative from Hamilton County seeking

reëlection in 2014; and

David Pepper, the nominee of the Democrat Party for Ohio Attorney General at

the 2014 general election.

While COAST desires to publicize and criticize these candidates’ support for taxpayer-funded

abortions through their support of the ACA, COAST is positioned similarly as it is with respect

to Congresswoman Kaptur – either engage in core political speech and risk the prospect of being

subjected to an inquisition before the Ohio Elections Commission (or even a panel of the

Commission) or remain silent.

For if COAST should proceed with the exercise of core political speech by either

criticizing these candidates’ vote or support for taxpayer-funded abortions or disagreeing with

such candidates’ efforts to explain their vote, COAST faces the prospect of the false-political-

speech statutes being applied against it. As the Supreme Court recognized and established as the

law of the case:

the threat of future enforcement of the false statement statute is substantial. Most

obviously, there is a history of past enforcement here: SBA was the subject of a

complaint in a recent election cycle.… Here, the threat is even more substantial

given that the Commission panel actually found probable cause to believe that

SBA’s speech violated the false statement statute. Indeed future complainants

may well “invoke the prior probable-cause finding to prove that SBA knowingly

lied.”

Because the universe of potential complainants is not restricted to state officials

who are constrained by explicit guidelines or ethical obligations, there is a real

risk of complaints from, for example, political opponents.… And petitioners,

who intend to criticize candidates for political office, are easy targets.

Susan B. Anthony List v. Driehaus, 573 U.S. ___, slip op., at 14 (internal citations omitted).

Like the SBA List, COAST has a substantial likelihood of success on the merits so as to

merit the issuance of the requested preliminary injunction. Since the last time this matter was

before this Court, the Supreme Court has addressed the constitutional protection to undisputedly


- 6 -

false statements (as opposed to putatively false statements as involved in this case). As the SBA

List developed in its pending motion, all nine justice in United States v. Alvarez, 567 U.S. ___,

132 S.Ct 2537 (2012), recognized the constitutional infirmities in the effort of the State of Ohio,

through its false-political-speech statute, to serve as the arbiter of political truth. In lieu of

repeating or even attempting to further develop that which is excellently presented to the Court,

COAST would incorporate by reference the analysis of Alvarez already tendered by the SBA

List. (See SBA List Motion (Doc. No. 120), at 8-18.)

As for the remaining elements to consider the issuance vel non of a preliminary

injunction, COAST previously addressed those issue at the outset of the case and would

incorporate by reference that analysis (Doc. No. 2-1 in Case No. 1:10-CV-754, at 29-31), which

tracks the recent arguments put forth by SBA List on the issue (SBA List Motion (Doc. No. 120),

at 19-20).

Conclusion

Quid est veritas? As this Court previously recognized:

The concomitant principles of free speech and truth collide most violently

in the arena of political speech.… Who then shall be the arbiter of political truth?

Ultimately, in a free society, the truth of political back and forth must be

adjudicated in the ‘marketplace of ideas,” in the context of the “uninhibited,

robust, and wide-open” debate on “public issues” that the First Amendment

protects.

…

The law steers far clear of requiring judicial determination of political

“truth,” and does so because of the serious dangers to democracy and the political

process that would result from turning the courts into “truth squads” with respect

to core political speech on matters of public concern.


- 7 -

(Doc. No. 108, Order Granting SBA List’s Renewed Motion for Summary Judgment, at 3 & 5

(quoting McIntyre v. Ohio Elec. Comm’n, 514, U.S. 334, 341 (1995), and New York Times v.

Sullivan, 376 U.S. 254, 270 (1964)).)

For the foregoing reasons, as well as those incorporated herein by reference, as well as to

promote and encourage the basic principle of the First Amendment that advances uninhibited,

robust, and wide-open debate on issues in the marketplace of ideas, this Court should issue a

preliminary injunction enjoining the Ohio Elections Commission and its members from

enforcing Section 3517.21(B)(9) and Section 3517.21(B)(10) of the Ohio Revised Code.

Respectfully submitted,

_/s/ Curt C. Hartman_________

Curt C. Hartman (0064242)

THE LAW FIRM OF CURT C. HARTMAN

3749 Fox Point Court

Amelia, Ohio 45102

(513) 752-2878

[email protected]

Christopher P. Finney (0038998)

FINNEY LAW FIRM LLC

4270 Ivy Pointe Blvd., Suite 225

Cincinnati, Ohio 45245

(513) 943-6655

[email protected]

Attorneys for Plaintiff Coalition Opposed to

Additional Spending & Taxes

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing will be served upon all counsel of record via the

Court’s electronic filing system on the date of filing.

_/s/ Curt C. Hartman_________


COAST Motion for Preliminary Injunction

Documents

Transcript of COAST Motion for Preliminary Injunction