SBA List Motion for Preliminary Injunction

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SUSAN B. ANTHONY LIST,

Plaintiff,

vs.

REP. STEVE DRIEHAUS, et al.,

Defendants.

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Case No.: 1:10-cv-00720 Judge Timothy S. Black ORAL ARGUMENT REQUESTED

PLAINTIFF SUSAN B. ANTHONY LIST’S MOTION FOR A PRELIMINARY

INJUNCTION, WITH MEMORANDUM IN SUPPORT

Plaintiff Susan B. Anthony List moves the Court, pursuant to Fed. R. Civ. P. 65, for a

preliminary injunction against the enforcement of Ohio Revised Code § 3517.21(B)(9)-(10) by

the Ohio Elections Commission and its members in their official capacities. Because the statute

chills core political speech and violates basic First Amendment principles, Plaintiff’s challenge is

likely to succeed. Plaintiff will also suffer irreparable injury absent prompt relief. The grounds

for this motion are set forth in the accompanying memorandum.

Michael A. Carvin* (D.C. Bar No. 366784)

Yaakov M. Roth (D.C. Bar No. 995090)

JONES DAY

51 Louisiana Avenue, N.W.

Washington D.C. 20001

(202) 879-3939

[email protected]

* admitted pro hac vice

Robert A. Destro (0024315)

2312 N. Powhatan Street

Arlington, VA 22205-2116

(202) 905-6064

[email protected]

Respectfully submitted,

/s/ David R. Langdon

David R. Langdon (0067046)

Joshua B. Bolinger (0079594)

LANGDON LAW LLC

8913 Cincinnati-Dayton Road

West Chester, Ohio 45069

(513) 577-7380

[email protected]

Counsel for Plaintiff Susan B. Anthony List

Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 1 of 28 PAGEID #: 2390

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SUSAN B. ANTHONY LIST,

Plaintiff,

vs.

REP. STEVE DRIEHAUS, et al.,

Defendants.

:

:

:

:

:

:

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Case No.: 1:10-cv-00720 Judge Timothy S. Black ORAL ARGUMENT REQUESTED

MEMORANDUM IN SUPPORT OF PLAINTIFF SUSAN B. ANTHONY LIST’S

MOTION FOR A PRELIMINARY INJUNCTION



JONES DAY



(202) 879-3939

(202) 626-1700 fax

[email protected]

*admitted pro hac vice


LANGDON LAW LLC



(513) 577-7380

(513) 577-7383 fax

[email protected]




(202) 905-6064

[email protected]



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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... ii

INTRODUCTION ......................................................................................................................... 1

STATUTORY AND FACTUAL BACKGROUND ..................................................................... 3

A. Ohio’s False-Statement Law Criminally Prohibits “False” Statements

About Political Candidates .................................................................................... 3

B. The False-Statement Law Imposes Substantial Burdens on Speech and Is

Often Abused for Political Purposes, as Ohio’s Attorney General Admits ........... 4

C. When SBA Criticized Rep. Driehaus’ Vote for the ACA, the OEC Found a

Probable Violation of Ohio’s False-Statement Laws ............................................. 5

D. In Connection with the 2014 Elections, SBA Plans To Criticize Rep.

Kaptur’s Vote for the ACA Using the Same Language ......................................... 6

ARGUMENT ................................................................................................................................. 7

I. OHIO’S FALSE-STATEMENT LAW CHILLS CORE ELECTORAL SPEECH

AND CREATES A “MINISTRY OF TRUTH” TO JUDGE POLITICAL

DEBATE ............................................................................................................................ 8

A. Alvarez Invalidated a Law Proscribing Verifiable Lies, and Even the

Dissent Agreed That the State Cannot Target “False” Speech of Public

Concern .................................................................................................................. 8

B. Under the Reasoning of All Nine Justices in Alvarez, Ohio’s False-

Statement Law Cannot Be Reconciled with the First Amendment ..................... 11

C. The Government Cannot Serve as the Arbiter of Political “Truth” Without

Profoundly Burdening Free Expression, and Ohio’s False-Statement

Regime Includes an Especially Noxious Enforcement Scheme .......................... 16

D. Indeed, This Court Has Already Recognized That, Under Alvarez, SBA

Cannot Be Punished for Its Political Speech ....................................................... 18

II. THE OTHER PRELIMINARY INJUNCTION FACTORS ARE ALSO

SATISFIED...................................................................................................................... 19

CONCLUSION ............................................................................................................................ 20


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TABLE OF AUTHORITIES

Page(s)

CASES

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) .................................................................................................................18

Brown v. Entm’t Merchants Ass’n,

131 S. Ct. 2729 (2011) .............................................................................................................12

Brown v. Hartlage,

456 U.S. 45 (1982) ...................................................................................................................14

Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999) .................................................................................................................17

Citizens United v. FEC,

558 U.S. 310 (2010) .................................................................................................................15

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) ...........................................................................................................17, 18

Connection Distrib. Co. v. Reno,

154 F.3d 281 (6th Cir. 1998) .............................................................................................19, 20

Dayton Area Visually Impaired Persons, Inc. v. Fisher,

70 F.3d 1474 (6th Cir. 1995) ...................................................................................................20

Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty.,

274 F.3d 377 (6th Cir. 2001) ...................................................................................................20

Dombrowski v. Pfister,

380 U.S. 479 (1965) .................................................................................................................20

Elrod v. Burns,

427 U.S. 347 (1976) .................................................................................................................19

FEC v. Wisc. Right to Life, Inc.,

551 U.S. 449 (2007) .................................................................................................................15

G & V Lounge, Inc. v. Mich. Liquor Control Comm’n,

23 F.3d 1071 (6th Cir. 1994) ...................................................................................................20

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) .................................................................................................................12

Monitor Patriot Co. v. Roy,

401 U.S. 265 (1971) .............................................................................................................8, 13


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Murdock v. Pennsylvania,

319 U.S. 105 (1943) .................................................................................................................18

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................................................................................2, 19

Overstreet v. Lexington-Fayette Urban Cnty. Gov’t,

305 F.3d 566 (6th Cir. 2002) ...................................................................................................19

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) .................................................................................................................16

Speiser v. Randall,

357 U.S. 513 (1958) .................................................................................................................16

Susan B. Anthony List v. Driehaus,

573 U.S. __ (June 16, 2014) ............................................................................................ passim

United States v. Alvarez,

132 S. Ct. 2537 (2012) ..................................................................................................... passim

United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) .................................................................................................................13

Virginia v. Hicks,

539 U.S. 113 (2003) .................................................................................................................20

Whitney v. California,

274 U.S. 357 (1927) .................................................................................................................12

Williams v. Rhodes,

393 U.S. 23 (1968) ...................................................................................................................12

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) .......................................................................................................................7

STATUTES

18 U.S.C. § 704 ................................................................................................................................8

Ohio Rev. Code § 3517.21 .........................................................................................................3, 20

Ohio Rev. Code § 3517.153 .............................................................................................................3

Ohio Rev. Code § 3517.154 .............................................................................................................3

Ohio Rev. Code § 3517.155 .............................................................................................................3

Ohio Rev. Code § 3517.156 .............................................................................................................3


-iv-

Ohio Rev. Code § 3517.992 .............................................................................................................4

Ohio Rev. Code § 3599.39 ...............................................................................................................4

Ohio Rev. Code § 3599.40 ...............................................................................................................4

OTHER AUTHORITIES

Ray Crumbley, Hearing Set on Complaint That School Levy Foes Violated Law,

COLUMBUS DISPATCH, May 16, 1992, 1992 WLNR 4914401 ................................................14

Election Complaint Filed, CLEVELAND PLAIN DEALER, Nov. 12, 1997, 1997 WLNR

6374883....................................................................................................................................15

Ohio Elections Commission: History, available at http://elc.ohio.gov/History.stm .......................5

State Elections Panel Chides Latta Campaign, THE BLADE, Nov. 6, 2007, 2007 WLNR

21915569..................................................................................................................................15

State Hears Schmidt Genocide Case, CINCINNATI ENQUIRER, Aug. 14, 2009, 2009 WLNR

16019649..................................................................................................................................14


1

INTRODUCTION

During oral argument at the Supreme Court in United States v. Alvarez, Justice Kagan

asked the U.S. Solicitor General about the constitutionality of “these State statutes—there are

more of them than I thought that there would be—that say no demonstrable falsehoods by a

political candidate in a political race.” The Solicitor General confessed that such statutes “are

going to have a lot harder time getting through the Court’s ‘breathing space’ analysis because the

context in which they arise is one that would create a more significant risk of chill.” He sought

to distinguish from such statutes the federal law there at issue, which proscribed falsely claiming

to have received military medals, as involving only “verifiable factual falsehoods” outside “the

political process.” Tr. of Oral Argument at 18-19, Alvarez, 132 S. Ct. 2537 (2012) (No. 11-210).

Despite throwing statutes like Ohio’s overboard, the Solicitor General lost Alvarez; the

Supreme Court invalidated the federal Stolen Valor Act. The same result follows a fortiori here.

In every respect, Ohio’s false-statement law is more offensive to the First Amendment than the

law in Alvarez. In terms of context, the Ohio statute governs political speech in the middle of

election campaigns—the irreducible core of protected speech. In terms of scope, Ohio’s law

forbids not only objectively verifiable lies about specific, personal facts, but also (as in this case)

hotly contested and contestable political spin, like the interpretation of a complex piece of

legislation. And in terms of effect, Ohio’s regime imposes huge burdens on truthful speakers, as

their political opponents can compel them to spend time and money, during the most critical days

of the election, defending their speech before a panel of bureaucrats who can subject them to

burdensome discovery and even brand them as “liars” in the public’s mind. It is hard to imagine

a regime more at war with the First Amendment. As even the dissent in Alvarez recognized—

and, indeed, as this Court already recognized in dismissing Driehaus’s defamation claim—the

State cannot just appoint itself as the “arbiter of political truth” (Dkt. No. 108, at 3).


2

On June 16th, the Supreme Court held that Plaintiff Susan B. Anthony List (“SBA”) may

proceed with its First Amendment challenge to Ohio’s false-statement law. Susan B. Anthony

List v. Driehaus, 573 U.S. __ (June 16, 2014) (No. 13-193) (“SBA”). Although the speech that

initially sparked this suit concerned the 2010 elections, SBA plans to keep criticizing Members

of Congress for supporting the Affordable Care Act (“ACA”) and its taxpayer-funded abortion.

Because the Ohio Elections Commission (“OEC”) has concluded that so describing the ACA is

probably a crime, however, SBA faces a credible threat of triggering enforcement proceedings

and suffering real burdens if it does so. For that reason, not only is SBA’s challenge ripe, but

SBA is entitled to a preliminary injunction. Congressional elections are less than five months

away, and SBA wants to speak during that campaign about Rep. Marcy Kaptur, who also voted

for the ACA despite purported pro-life values. An injunction is necessary to allow SBA to

engage in this campaign free from the obvious speech burdens imposed by the Ohio law.

All of the requirements for a preliminary injunction are satisfied. Alvarez makes plain

that SBA is certain to succeed on the merits. None of the three opinions in that case would allow

state bureaucrats to act as supreme fact checkers for every political campaign in the state. The

remedy for false speech is truthful speech, not state suppression, and “erroneous statement …

must be protected if the freedoms of expression are to have the ‘breathing space’ that they

‘need … to survive.’” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964) (quoting NAACP

v. Button, 371 U.S. 415, 433 (1963)). This deprivation of constitutional freedoms also

constitutes irreparable injury per se, and the enforcement of an unconstitutional regime serves

neither equity nor the public interest. This Court should therefore enjoin Ohio’s false-statement

law, and so ensure continued respect for our “profound national commitment to the principle that

debate on public issues should be uninhibited, robust, and wide-open.” Id. at 270.


3

STATUTORY AND FACTUAL BACKGROUND

This case presents a constitutional challenge to Ohio Revised Code § 3517.21(B)(9)-(10),

which proscribes certain “false” statements about political candidates. SBA faces enforcement

proceedings under that statute, because it intends to repeat political criticism that the OEC

previously found gave rise to probable cause to believe that SBA violated the law.

A. Ohio’s False-Statement Law Criminally Prohibits “False” Statements About

Political Candidates.

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). Even if one does

not knowingly or recklessly disregard the falsity of the statement, it is a crime to “[m]ake a false

statement concerning the voting record of a candidate or public official.” Id. § 3517.21(B)(9).

These provisions are together referred to in this memorandum as Ohio’s false-statement law.

Procedurally, “any person” may file a complaint alleging a violation of this law with the

OEC. Id. § 3517.153(A). The OEC can issue enforceable subpoenas “compelling the attendance

of witnesses and the production of relevant papers.” Id. § 3517.153(B). 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,” id. § 3517.154(A), 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,” id. § 3517.156(A),

(C). If so, the panel must refer the case to the full Commission, id. § 3517.156(C)(2), and if the

Commission then finds a violation, it “shall refer the matter to the appropriate prosecutor.” Id.

§ 3517.155(D)(2). See generally SBA, slip op. at 2-3 (describing statutory regime).


4

Violation of Ohio’s false-statement law is a first-degree misdemeanor. Id. § 3599.40.

“Whoever violates section 3517.21 … shall be imprisoned for not more than six months or fined

not more than five thousand dollars, or both.” Id. § 3517.992(V). And an individual who is

twice convicted of violating the elections code “shall be disfranchised.” Id. § 3599.39.

B. The False-Statement Law Imposes Substantial Burdens on Speech and Is

Often Abused for Political Purposes, as Ohio’s Attorney General Admits.

Ohio’s regime allows anyone to trigger burdensome proceedings against a speaker, thus

imposing costly entry barriers to the political marketplace of ideas. It is no surprise that the

speech suppressing regime has been exploited to silence opponents, with campaigns strategically

deploying OEC complaints to burden and distract their electoral rivals. Indeed, when this case

was before the Supreme Court, Ohio’s Attorney General filed an amicus curiae brief to highlight

how the regime allows campaigns “to engage the State’s legal and administrative processes in

order to gain a campaign advantage” in close elections. Amicus Br. of Ohio Atty. Gen. at 7, SBA,

573 U.S. ___ (2014) (No. 13-193) (“AG Brief”), http://www.americanbar.org/content/dam/aba/

publications/supreme_court_preview/briefs-v3/13-193_np_amcu_oag.authcheckdam.pdf.

Merely filing an OEC complaint—which anyone may do—itself imposes serious burdens

on the target. Whenever a complaint is filed, a probable-cause hearing must be held; there is “no

system for weeding out frivolous complaints.” Id. at 6. “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 the

panel finds probable cause—a “very low hurdle”—discovery is allowed, allowing political

opponents to delve into confidential communications. Id. at 5. On top of that, 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


5

“profound” political damage, even before any final OEC (much less judicial) adjudication has

occurred. Id. at 6. Complaints to the OEC can thus easily “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 itself concedes that campaigns “use the Commission as a part of their activities.”

Ohio Elections Commission: History, http://elc.ohio.gov/History.stm.

The abusive manipulation of the OEC regime is further 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. See AG Brief at 16. And 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 grants these motions, see id. at 20, thus perpetuating the continued abuse

and political gamesmanship that the false-statement regime allows.

In short, as the Supreme Court (quoting the Attorney General) aptly put it, “the ‘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.’” SBA, slip op. at 15.

C. When SBA Criticized Rep. Driehaus’ Vote for the ACA, the OEC Found a

Probable Violation of Ohio’s False-Statement Laws.

In 2010, SBA criticized certain Members of Congress—including Reps. Steve Driehaus

and Marcy Kaptur of Ohio—who voted for the ACA. Among other things, SBA planned to erect

large billboards stating: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded

abortion.” (Dkt. No. 25-3, at 10.) After SBA’s billboards were reported in the news, Driehaus

filed a complaint with the OEC, alleging that SBA violated the Ohio false-statement law. (Dkt.

No. 25-3, at 2.) Driehaus’s complaint centered on his claim that the ACA does not specifically

appropriate federal funds for abortions, and that SBA’s speech was therefore false.


6

As a result of Driehaus’ complaint, SBA was forced to divert its time and resources—in

close proximity to the election—to hire legal counsel to defend itself before the OEC. (Decl. of

Emily Buchanan, Exh. A, ¶ 6.) The OEC held an expedited hearing and voted, 2-1, to find

probable cause that SBA had committed the crime. (Dkt. No. 25-5, at 30.) Driehaus then

pursued voluminous discovery requests to SBA and third parties. (Dkt. Nos. 25-6 & 25-7.) He

noticed depositions of three SBA officials and subpoenaed officials of allied organizations. (Id.)

Driehaus also sought stunningly broad production of documents—including communications

with political party committees and even Members of Congress and their staff. (See id.)

Ultimately, after SBA filed this First Amendment suit seeking to restrain enforcement of

the false-statement law, Driehaus lost reelection and moved to withdraw his OEC complaint.

Although the Sixth Circuit found SBA’s constitutional challenge to be unripe, the Supreme Court

unanimously disagreed, and ordered the case remanded. See SBA, slip op. at 1, 18.1

D. In Connection with the 2014 Elections, SBA Plans To Criticize Rep. Kaptur’s

Vote for the ACA Using the Same Language.

As the Supreme Court held, SBA’s constitutional claim remains live, because SBA wants

to repeat its criticism of Rep. Driehaus about other Ohio candidates, but obviously fears that

doing so will again subject it to enforcement proceedings under the false-statement regime. SBA,

slip op. at 11-12. In particular, SBA wants to post a billboard concerning Rep. Marcy Kaptur,

who is seeking reelection in 2014, stating: “Shame on Marcy Kaptur! Kaptur voted FOR

taxpayer-funded abortion.” (Decl. of Emily Buchanan, Exh. A, ¶ 7.) But, because of the OEC’s

finding about the same speech regarding Driehaus in 2010, engaging in that speech will cause

SBA to suffer substantial financial, political, and reputational harms, not to mention potential

criminal penalties—and SBA therefore will not do so absent judicial relief. (Id., ¶ 8.)

1 Driehaus also filed a defamation counterclaim, which this Court dismissed because associating a

political candidate with a mainstream policy view is not defamatory under Ohio law. (Dkt. No. 108.)


7

ARGUMENT

The Supreme Court has now confirmed that SBA’s facial First Amendment challenge to

Ohio’s false-statement law is ripe for review. SBA, slip op. at 7 n.5, 11. Indeed, congressional

elections are less than five months away, and SBA wants to repeat, about Rep. Marcy Kaptur, the

same criticisms that it leveled against Rep. Steve Driehaus in 2010. But, as the Supreme Court

held, SBA credibly fears enforcement if it proceeds with those plans, given that the OEC has

previously found its speech probably criminal. Id. at 11-17. SBA thus seeks a preliminary

injunction, so that it can fully participate in the upcoming elections.

To obtain a preliminary injunction, a plaintiff must show “that he is likely to succeed on

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). That standard is plainly satisfied here.

Ohio’s false-statement laws are manifestly unconstitutional. In United States v. Alvarez, 132 S.

Ct. 2537 (2012), the Supreme Court held that even a prohibition on objectively verifiable lies

outside the political context violated the First Amendment. All the more so here, where Ohio

proscribes core political speech during election campaigns and readily allows campaigns to

severely burden (and thus chill) even true speech of their electoral opponents. Ohio’s political

“Ministry of Truth” cannot come close to satisfying any level of constitutional scrutiny, in light

of the fundamental First Amendment principle that the remedy for false speech is true speech—

not administrative hearings or criminal penalties. In addition, the burdens that Ohio’s regime

imposes on SBA—burdens the Supreme Court has already recognized (SBA, slip op. at 15)—

constitute irreparable injury per se under Sixth Circuit precedent. And the balance of equities

and public interest counsel strongly in favor of injunctive relief, so that Ohio’s unconstitutional

regime does not once again inhibit robust political discourse during the upcoming campaigns.


8

I. OHIO’S FALSE-STATEMENT LAW CHILLS CORE ELECTORAL SPEECH

AND CREATES A “MINISTRY OF TRUTH” TO JUDGE POLITICAL DEBATE.

The Supreme Court’s most recent decision considering the constitutionality of bans on

“false” speech, United States v. Alvarez, is controlling and dispositive here. The law in Alvarez

merely proscribed a person from making undeniably false and valueless claims that he won

military medals. In stark contrast, Ohio’s law prohibits “false” political speech on hotly debated

issues of public importance in the middle of an election campaign, when, as the Supreme Court

emphasized in this case, the First Amendment “has its fullest and most urgent application,” SBA,

slip op. at 12 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Thus, there is no

way that this law can remotely pass muster, when the far-more-defensible law in Alvarez could

not. Indeed, this Court already effectively recognized as much, when it cited Alvarez in

dismissing Driehaus’s defamation claim against SBA. As this Court reasoned: “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.” (Order, Dkt.

108, at 5.) For the same reason, Ohio’s false-statement law violates the First Amendment.

A. Alvarez Invalidated a Law Proscribing Verifiable Lies, and Even the Dissent

Agreed That the State Cannot Target “False” Speech of Public Concern.

Alvarez considered the Stolen Valor Act, which prohibited falsely claiming to have been

awarded military medals. See 18 U.S.C. § 704. Mr. Alvarez spoke “an intended, undoubted lie”

when he claimed to have earned a Congressional Medal of Honor. 132 S. Ct. at 2542 (plurality).

1. Writing for four Justices, Justice Kennedy rejected the notion that false speech is

unprotected by the First Amendment. There is no “exception to the First Amendment for false

statements.” Id. at 2544. To the contrary, “false statements are inevitable if there is to be an

open and vigorous expression of views,” which “the First Amendment seeks to guarantee.” Id.


9

The plurality opinion then explained, in broad strokes, why the Stolen Valor Act was

incompatible “in a fundamental way” with principles of free speech:

Permitting the government to decree this speech to be a criminal offense … would

endorse government authority to compile a list of subjects about which false

statements are punishable. That governmental power has no clear limiting

principle. Our constitutional tradition stands against the idea that we need

Oceania’s Ministry of Truth. Were this law to be sustained, there could be an

endless list of subjects the National Government or the States could single out. …

[That] would give government a broad censorial power unprecedented in this

Court’s cases or in our constitutional tradition. The mere potential for the

exercise of that power casts a chill, a chill the First Amendment cannot permit if

free speech, thought, and discourse are to remain a foundation of our freedom.

Id. at 2547-48 (citation omitted). That analysis, held the plurality, “suffices to show that the Act

conflicts with free speech principles.” Id. at 2548.

Turning next to application of the Court’s traditional “exacting scrutiny” for content-

based speech restrictions, Justice Kennedy identified several fatal defects in the Government’s

defense of the Stolen Valor Act, two of which are apposite here. First, the Government had not

shown a “direct causal link between … the Government’s interest in protecting the integrity of

the military honors system and the Act’s restriction on the false claims of liars.” Id. at 2549.

The Government had “point[ed] to no evidence to support its claim that the public’s general

perception of military awards is diluted by false claims such as those made by Alvarez.” Id.

Second, “[t]he Government has not shown, and cannot show, why counterspeech would not

suffice to achieve its interest.” Id.

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 straightout lie, the simple truth. …

[S]uppression of speech by the government can make exposure of falsity more

difficult, not less so. Society has the right and civic duty to engage in open,

dynamic, rational discourse. These ends are not well served when the government

seeks to orchestrate public discussion through content-based mandates.

Id. at 2550. There was thus “no clear showing of the necessity of the statute.” Id. at 2551.


10

2. Justice Breyer, joined by Justice Kagan, agreed that the Stolen Valor Act could

not be reconciled with the First Amendment. See id. (Breyer, J., concurring in the judgment).

He recognized that the Act “concern[ed] false statements about easily verifiable facts,” rather

than false statements “about philosophy, religion, history, the social sciences, the arts, and the

like,” and therefore presented far lower “dangers of suppressing valuable ideas.” Id. at 2552.

Accordingly, he invoked an intermediate-scrutiny balancing test, rather than “strict categorical

analysis.” Id. at 2551-52. Nonetheless, applying that test, the concurrence observed that the

statute “ranges very broadly” and could allow “censorious selectivity by prosecutors.” Id. at

2555. Moreover, “in this area more accurate information will normally counteract the lie.” Id. at

2556. Justice Breyer thus concluded that “the statute as presently drafted works disproportionate

constitutional harm” and “consequently fails intermediate scrutiny.” Id.

3. Justice Alito, joined by Justices Scalia and Thomas, dissented. He recognized

that the First Amendment protects false speech where necessary “in order to prevent the chilling

of truthful speech on matters of public concern.” Id. at 2563 (Alito, J., dissenting). Thus, “there

are broad areas in which any attempt by the state to penalize purportedly false speech would

present a grave and unacceptable danger of suppressing truthful speech.” Id. at 2564. “Laws

restricting false statements about … matters of public concern would present such a threat,” and

it would thus be “perilous to permit the state to be the arbiter of truth” in that area. Id. Further,

“[a]llowing the state to proscribe false statements in these areas also opens the door for the state

to use its power for political ends,” creating a “potential for abuse of power … simply too great”

for the First Amendment to permit. Id. The Stolen Valor Act, however, stood in “stark contrast”

to such laws. Id. Among other things, the statute applied “to only a narrow category of false

representations about objective facts that can almost always be proved or disproved with near


11

certainty” and fall “squarely within the speaker’s personal knowledge.” Id. at 2557. Moreover,

“[t]he false statements proscribed by the Act are highly unlikely to be tied to any particular

political or ideological message.” Id. For those reasons, the dissent concluded that the Act

“present[ed] no risk at all that valuable speech will be suppressed” or chilled. Id. at 2564.

B. Under the Reasoning of All Nine Justices in Alvarez, Ohio’s False-Statement

Law Cannot Be Reconciled with the First Amendment.

The unconstitutionality of Ohio’s false-statement law follows a fortiori from Alvarez. As

just noted, six Justices voted to invalidate the Stolen Valor Act, even though it proscribed only

indisputable lies about objectively verifiable facts concerning the speaker himself, outside the

political context. And the dissent would have upheld it only because of those characteristics,

while making clear that laws proscribing false statements about matters of public concern were

plainly distinguishable and constitutionally defective. Because Ohio’s false-statement law (i)

broadly criminalizes falsity in the electoral context, when speech is most valuable; (ii) extends to

claims that are not objectively verifiable personal facts, but fairly debatable positions on matters

of public concern, as this case illustrates so well; and (iii) for those reasons as well as others,

would substantially chill core political speech and require the State to serve as the arbiter of

political truth, it fails under the Alvarez plurality, concurrence, and dissent alike.

1. Under Justice Kennedy’s plurality, Ohio’s law is subject to exacting scrutiny, as

it—like the Stolen Valor Act—proscribes speech outside “those few categories where the law

allows content-based regulation of speech.” 132 S. Ct. at 2544 (plurality). And also like the

Stolen Valor Act, Ohio’s false-statement law doubly fails that test. First, the State has “no

evidence” that its false-statement regime actually protects the “integrity” of Ohio elections. Id.

at 2549. Ohio cannot show that its voters are better informed than they were prior to the false-

statement regime, or than voters in states that do not criminalize such false statements. See


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Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738-39 (2011) (state must “show a direct

causal link” between proscribed speech and alleged harm). Cf. Williams v. Rhodes, 393 U.S. 23,

47 (1968) (Harlan, J., concurring) (“As both Ohio’s electoral history and the actions taken by the

overwhelming majority of other States suggest, opening the ballot to this extent is perfectly

consistent with the effective functioning of the electoral process.”).

Second, even more obviously, there is no reason “why counterspeech would not suffice to

achieve [Ohio’s] interest.” Alvarez, 132 S. Ct. at 2549 (plurality). The “ordinary course in a free

society” is to remedy false speech using true speech—not through “suppression of speech.” Id.

at 2550. This free-debate “remedy” is most needed (and effective) in political campaigns, where

the “truth” is always determined by charges and counter-charges by the opposing campaigns, and

where “victims” like Driehaus (and his allies) have ample means and opportunity to “correct” the

“false” charges. Thus, in this country, political “attacks” have always been resolved in the

“marketplace of ideas,” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341 (1995), not by

the State. Accord Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (“If

there be time to expose through discussion the falsehood and fallacies, … the remedy to be

applied is more speech, not enforced silence.”). Political candidates are more than able to refute

false claims through their public communications. And journalists help correct any falsehoods,

by doing their own “fact-checking.” Indeed, websites like PolitiFact.com and the Washington

Post’s Fact Checker have pioneered an entire industry of quick analysis of statements by or about

candidates. The notion that there is nonetheless a true “necessity,” Alvarez, 132 S. Ct. at 2551,

for political “fact-checking” by state bureaucrats brandishing criminal penalties defies reality.

In short, the State’s only interest here is paternalistically shielding the electoral process

from “false” statements that uninformed citizens, unlike the enlightened OEC, are purportedly


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unable to evaluate. But, especially on matters of politics, “the Constitution says … that these

judgments are for the individual to make, not for the Government to decree.” United States v.

Playboy Entm’t Grp., Inc., 529 U.S. 803, 818 (2000). To uphold Ohio’s law would thus, as the

Alvarez plurality feared, “endorse government authority to compile a list of subjects about which

false statements are punishable.” 132 S. Ct. at 2547. The OEC is precisely the “Ministry of

Truth” against which “[o]ur constitutional tradition stands.” Id. As Justice Kennedy warned,

that power “has no clear limiting principle,” casting “a chill the First Amendment cannot permit

if free speech, thought, and discourse are to remain a foundation of our freedom.” Id. at 2547-48.

2. The reasoning of Justice Breyer’s Alvarez concurrence would similarly condemn

Ohio’s law. At the threshold, Justice Breyer would apply strict scrutiny here. In Alvarez, he

applied only “intermediate” scrutiny because the Stolen Valor Act forbade “easily verifiable” lies

that do not implicate “valuable ideas.” Id. at 2552 (Breyer, J., concurring in judgment). But he

conceded that “[l]aws restricting false statements about philosophy, religion, history, the social

sciences, the arts, and the like raise such concerns [about suppressing truthful speech], and in

many contexts have called for strict scrutiny.” Id. As this case shows, Ohio’s false-statement

law extends well beyond readily verifiable facts like whether Alvarez was awarded the Medal of

Honor, burdening not just “undoubted lie[s],” id. at 2542 (plurality), but even eminently rational

interpretations of complex statutes (like the ACA). Moreover, the “lies” prohibited by Ohio’s

law arise in “campaigns for political office,” where the First Amendment “has its fullest and

most urgent application.” Monitor Patriot, 401 U.S. at 272. Justice Breyer would thus subject

Ohio’s law to even more demanding scrutiny than the Stolen Valor Act (which he invalidated).

But even under intermediate scrutiny, Ohio’s law would fail. It “ranges very broadly,”

requiring no proof that anyone was fooled or affected in any way by the supposed falsity, let


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alone that a candidate actually lost an election as a result. Alvarez, 132 S. Ct. at 2554-55 (Breyer,

J., concurring in judgment). It also applies “in political contexts,” where there exists a high “risk

of censorious selectivity” by state-deputized complainants. Id. at 2555. And it extends to any

“false statement concerning a candidate,” not just certain narrow, verifiable claims that are

defamatory or likely to cause harm. On the other hand, there is virtually no need for the law,

because “more accurate information will normally counteract the lie.” Id. at 2556.

3. Finally, Ohio’s law fails even under the Alvarez dissent. The dissent reasoned

that the Stolen Valor Act “present[ed] no risk at all that valuable speech will be suppressed,”

because it applied only to lies without any “political or ideological message,” about “objective

facts that can almost always be proved or disproved with near certainty” and fall “squarely

within the speaker’s personal knowledge.” Id. at 2557, 2564. As such, speakers engaged in

political or public-policy speech would have no reason to fear prosecution.

The dissent recognized, however, that a law “restricting false statements about … matters

of public concern” would “present a grave and unacceptable danger of suppressing truthful

speech.” Id. at 2564. Ohio’s false-statement law is precisely such a statute. It concerns the most

quintessential “matters of public concern”: who should be elected to govern. Brown v. Hartlage,

456 U.S. 45, 53 (1982) (describing political campaigns as “the heart of American constitutional

democracy”). And it is not limited to verifiable “hard” facts. The OEC has been asked to

determine the “falsity” of everything from whether donations from a Turkish PAC were “blood

money” given the Armenian genocide, State Hears Schmidt Genocide Case, CINCINNATI

ENQUIRER, Aug. 14, 2009, 2009 WLNR 16019649, to whether a school board “turned control of

the district over to the union,” Ray Crumbley, Hearing Set on Complaint That School Levy Foes

Violated Law, COLUMBUS DISPATCH, May 16, 1992, 1992 WLNR 4914401, to whether a city


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councilor had “a habit of telling voters one thing, then doing another,” Election Complaint Filed,

CLEVELAND PLAIN DEALER, Nov. 12, 1997, 1997 WLNR 6374883, to whether a senator had

supported higher taxes by voting to put a proposed tax increase on the ballot, State Elections

Panel Chides Latta Campaign, THE BLADE, Nov. 6, 2007, 2007 WLNR 21915569. And, in this

very case, the OEC purported to determine the “falsity” of SBA’s interpretation of the most

consequential, complex, and hot-button federal legislation of modern times.

Moreover, Ohio’s law contains numerous other features that exacerbate its chilling effect.

Anyone can file a complaint, automatically triggering “burdensome Commission proceedings,”

SBA, slip op. at 16, even if the speaker told only the truth. The target “may be forced to divert

significant time and resources to hire legal counsel and respond to discovery requests in the

crucial days leading up to an election.” Id. at 15-16. See FEC v. Wisc. Right to Life, Inc., 551

U.S. 449, 468 n.5 (2007) (“[L]itigation constitutes a severe burden on political speech.”);

Citizens United v. FEC, 558 U.S. 310, 366 (2010) (“[D]isclosure requirements may burden the

ability to speak ….”). And if the OEC finds probable cause, the speaker may suffer profound

political harm. SBA, slip op. at 16. Unlike the Stolen Valor Act, Ohio’s false-statement law is

thus certain to chill a substantial quantity of valuable political speech during electoral campaigns.

* * *

In short, Alvarez was a hard case because the Stolen Valor Act forbade only valueless,

clearly objectively verifiable lies, and did not chill any truthful speech. Even still, six Justices

voted to invalidate it. This case, by contrast, is easy. Ohio’s false-statement law criminalizes

core political speech and, as the State’s own Attorney General concedes, it chills truthful,

valuable contributions to the marketplace of ideas. Under Alvarez, Ohio’s law cannot survive.


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C. The Government Cannot Serve as the Arbiter of Political “Truth” Without

Profoundly Burdening Free Expression, and Ohio’s False-Statement Regime

Includes an Especially Noxious Enforcement Scheme.

As all three Alvarez opinions agree, the critical objection to proscribing “false” speech is

not that false speech is valuable, but that the process of allowing the State to serve as arbiter of

truth is intrinsically hazardous to free expression. For one thing, forcing a speaker to defend the

truth of his speech costs time and money. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 794 (1988) (forcing speaker to “bear the costs of litigation” will “chill speech”). For

another, the State may err about the truth of a statement, especially where the truth is unclear or

debatable. Speiser v. Randall, 357 U.S. 513, 526 (1958) (“[T]he possibility of mistaken

factfinding … will create the danger that the legitimate utterance will be penalized.”). In light of

those burdens and risks, speakers engaging in truthful speech will be chilled. The basic problem

with mandating truth is thus that a Ministry of Truth must inevitably enforce that mandate.

Those burdens were at their lowest ebb in Alvarez, because the Stolen Valor Act forbade

only precisely targeted, valueless falsehoods and created no remotely cognizable disincentive to

engage in other, potentially valuable speech. Because the proscribed falsehood was narrow and

discrete; because a speaker would inherently know whether an assertion concerning his receipt of

a medal was false; and because “adjudicating” the falsity of that single, personal assertion would

not be subject to any reasonable dispute, nothing in the Stolen Valor Act could plausibly chill

arguably true speech. Nonetheless, the Court invalidated it, unwilling to allow the government

to take even this first, minimal step into mandating (and so defining) “truth.”

By contrast, Ohio’s regime is the most toxic imaginable for free expression. Every facet

of its design and enforcement amplifies the risks of partisan abuse and chilling truthful speech.

As the Supreme Court noted, Ohio’s law subjects the most valuable First Amendment speech—

that concerning “campaigns for political office”—to a system that enables the speaker’s rivals


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“to gain a campaign advantage without ever having to prove the falsity of a statement.” SBA,

slip op. at 12, 15. Thus, the Supreme Court has already concluded that Ohio’s speech-

suppressing scheme subjects core political speech to potentially selective burdens even if the

speech is not proved false. It is thus plainly unconstitutional under Alvarez, which prohibits

burdening non-political speech even if it is obviously and knowingly false.

Specifically, Ohio’s regime is fatally defective for a number of reasons. First, it extends

to all speech by all speakers. While candidates themselves may be equipped (with money and

attorneys) to manage the vagaries of the OEC process, independent speakers (like SBA) or small

media outlets (like bloggers) are not. Cf. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.

750, 758 (1988) (“A newspaper espousing an unpopular viewpoint on a shoestring budget may

be the likely target …, but may not have the time or financial means to challenge” the regulator).

Second, Ohio’s law deputizes everyone—not just “state officials who are constrained by

explicit guidelines or ethical obligations” (SBA, slip op. at 14)—to sic the OEC on their “political

opponents” (id.) in the midst of a contested campaign, imposing severe burdens and costs. As

the Supreme Court noted, “the Commission has no system for weeding out frivolous complaints”

(id.) or otherwise shielding the speaker from a costly, distracting probable-cause hearing. The

target must hire counsel and devote time, money, and attention to defending itself to the OEC

rather than to the electorate. If probable cause is found, the complainant may engage in intrusive

discovery into confidential campaign materials. And the OEC can issue such a public “probable

cause” finding in just days, without any chance for judicial review before the public is induced to

believe that the State has officially declared one candidate (or his supporters) to be lying. The

Supreme Court has invalidated even very minor burdens on protected speech, like disclosure

rules, Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 200 (1999), and license fees,


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Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943). Here, the “burdens that Commission

proceedings can impose on electoral speech are of particular concern.” SBA, slip op. at 15. Just

as the State could not charge speakers one dollar to participate in public debate, it cannot impose

on them the far higher costs associated with the OEC regime—much less allow partisan actors,

in their sole discretion, to impose such costs on their opponents. Cf. City of Lakewood, 486 U.S.

at 763 (danger of censorship “at its zenith” when burdens imposed with “unbridled discretion”).

Third, as if all of that were not bad enough, the “burdensome Commission proceedings”

are, as the Supreme Court emphasized, severely exacerbated by the “additional threat of criminal

prosecution.” SBA, slip op. at 16. “The government may violate [the First Amendment] in many

ways, but a law imposing criminal penalties on protected speech is a stark example of speech

suppression.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002).

For all of these reasons, the Ohio regime manifests all of the Orwellian dangers created

by having the State determine which campaign speech the electorate should hear.

D. Indeed, This Court Has Already Recognized That, Under Alvarez, SBA

Cannot Be Punished for Its Political Speech.

In truth, this Court has already recognized Alvarez’s significance for this case. Granting

summary judgment to SBA on Driehaus’s defamation claim, this Court quoted Alvarez at length

in the course of explaining why SBA could not be held liable for its allegedly false statements:

The concomitant principles of free speech and truth collide most violently in the

arena of political speech. During the recently passed national elections, citizens

were bombarded with political advertisements that the targets of which daily

denounced as lies. 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.


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(Dkt. No. 108, at 3, 5 (citations omitted).)2

All of that reasoning applies even more powerfully to SBA’s First Amendment challenge

to Ohio’s false-statement law. Under that law, bureaucrats and judges must evaluate competing

political claims and determine which is the “truth,” with criminal penalties at stake for those who

“lied.” And while defamatory statements are one of the historic categories of unprotected speech,

Alvarez, 132 S. Ct. at 2544 (plurality), there is no precedent for Ohio’s false-statement law—

except, perhaps, the infamous and unconstitutional Sedition Act of 1798. N.Y. Times, 376 U.S.

at 276 (affirming “broad consensus that the [Sedition] Act, because of the restraint it imposed

upon criticism of government and public officials, was inconsistent with the First Amendment”).

II. THE OTHER PRELIMINARY INJUNCTION FACTORS ARE ALSO SATISFIED.

The other preliminary injunction requirements are also clearly satisfied here. Indeed, in

First Amendment cases, 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).

A. “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)

(plurality). Once a plaintiff has shown a likelihood of success on a claim asserting an ongoing or

future violation of First Amendment rights, the irreparable-harm requirement is necessarily also

satisfied. Connection, 154 F.3d at 288 (“[If plaintiff] can establish a substantial likelihood of

success on the merits of its First Amendment claim, it also has established the possibility of

irreparable harm as a result of the deprivation of the claimed free speech rights.”); Overstreet v.

Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002) (same).

2 As the Court explained, the common law does not treat speech associating a political candidate

with a mainstream policy view as defamatory—for many of the same reasons that the First Amendment

does not tolerate allowing the government to resolve the “truth” of political charges or countercharges.


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B. The balance of hardships also favors injunctive relief here. As the Supreme Court

explained, “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, slip op. at 18. Given that the 2014 elections are less than five months away, denial

of preliminary relief would compel SBA to make just that Hobson’s choice. By contrast, issuing

a preliminary injunction will not harm the State—it will merely prevent it from enforcing an

unconstitutional regime, in which it has no legitimate interest. See Connection, 154 F.3d at 288

(government harmed only “if enforcement of a constitutional law … were enjoined”); Deja Vu of

Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001)

(injunction causes “no substantial harm to others” if “challenged law is unconstitutional”).

C. Finally, “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. Fisher, 70 F.3d 1474,

1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in ... protection of First

Amendment liberties.”). That is especially true where, as here, denial of an injunction would

prevent the public from hearing the speaker’s message. “[F]ree expression” is, after all, “of

transcendent value to all society, and not merely to those exercising their rights.” Dombrowski v.

Pfister, 380 U.S. 479, 486 (1965). The denial of injunctive relief to SBA would thus harm not

only SBA, “but society as a whole, which [would be] deprived of an uninhibited marketplace of

ideas” in connection with the 2014 elections. Virginia v. Hicks, 539 U.S. 113, 119 (2003).

CONCLUSION

For these reasons given above, this Court should issue a preliminary injunction enjoining

the OEC and its members from enforcing Ohio Revised Code § 3517.21(B)(9)-(10).


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Respectfully submitted,



JONES DAY



(202) 879-3939

(202) 626-1700 fax

[email protected]

*admitted pro hac vice

/s/ David R. Langdon


Trial Attorney

Joshua B. Bolinger (0079594)

LANGDON LAW LLC



(513) 577-7380

(513) 577-7383 fax

[email protected]




(202) 905-6064

(703) 534-1530 fax

[email protected]



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CERTIFICATE OF SERVICE

I certify that the foregoing Plaintiff Susan B. Anthony List’s Motion for a Preliminary

Injunction, with Memorandum in Support was served electronically on June 20, 2014, upon all

counsel of record via the court’s electronic filing system.

/s/ Joshua B. Bolinger

Joshua B. Bolinger


SBA List Motion for Preliminary Injunction

Documents

Transcript of SBA List Motion for Preliminary Injunction