In a federal lawsuit filed Tuesday afternoon by the UCLA School of Law and an Ohio attorney, three Ohio-based Plaintiffs are challenging a recently enacted Ohio law (HB 151, 131st GA) that purports to criminalize constitutionally protected political and other expression on the Internet on First and Fourteenth Amendment grounds.
Eugene Volokh of the Scott & Cyan Banister First Amendment Clinic UCLA School of Law and Raymond V. Vasvari, Jr. of Cleveland will represent Tom Zawistowski, on behalf on the The Portage County TEA Party, Inc., Joseph Mismas, on behalf of Plunderbund LLC, and John Michael Spinelli, a freelance author and journalist who reports on politics in Ohio and beyond.
The three Plaintiffs and their counsel, one of whom, Vasvari, was a former legal director of the ACLU of Ohio, are suing, in their official capacity, Ohio Attorney General Mike DeWine, Portage County Prosecuting Attorney Victor Vigluicci and Franklin County Prosecuting Attorney Ron O’Brien, to contest the constitutionality only of the prohibitions in HB 151 [O.R.C. § 2917.21(B)(2)], which became effective August 16, 2016.
Filed in The United States District Court for the Northern District of Ohio Eastern Division on Tuesday, the lawsuit does not contest the prohibition in the law on threatening expression, just that part of the law against abusing and harassing speech. The case was assigned to Judge Sara Lioi, whose courtroom is in the John F. Seiberling Federal Building and U.S. Courthouse in Akron.
The three Plaintiffs, who routinely engage in constitutionally protected speech that may be considered provocative by some, are concerned with the following clause in HB 151, as it relates to opinions they may express online about politicians and/or elected officials: “No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening or harassing another person.”
According to the complaint:
Plaintiffs are online authors and publishers who write, or whose members write and disseminate through the Internet, articles and opinion pieces regarding politics generally and Ohio politics specifically, which articles from time to time include invective, ridicule and strong language intended to mock, lampoon or call into question the actions, motives and public policy positions of various figures — including without limitation politicians, and the incumbents in and contenders for various public offices.
These articles and opinions put the Plaintiffs at a credible risk of criminal prosecution under Section 2917.21(B)(2) – as when they condemn, sharply criticize or mock government officials and other public figures – should police or prosecutors believe their posts were written with the purpose of abuse or harassment.
In Ohio, misdemeanors of the first degree are punishable by a fine of up to One Thousand Dollars ($1,000.00) and incarceration of no more than six months. Felonies of the fifth degree are punishable by incarceration of six, seven, eight, nine, ten, eleven or twelve months, and a fine not to exceed Two Thousand Five Hundred Dollars ($2,5000.00).
Plaintiff Plunderbund Media L.L.C. is an Ohio corporation with its principal place of business in Columbus, Franklin County, Ohio, that publishes an internet web log under the name of Plunderbund that focuses on Ohio and national politics. Articles are carefully researched and factual and use humor and ridicule to make rhetorical points.
Plaintiff Portage County TEA Party is a not for profit Ohio corporation with members in Portage County, Ohio, who are political activists and commentators and frequently engage in robust online discussion of local, state and national politics.
Plaintiff John Michael Spinelli is currently an author for Plunderbund and publishes articles through the blog which, while factual and carefully researched, also use humor and ridicule to make rhetorical points. Mr. Spinelli has been a journalist and reporter for more than fifteen years and in that time has written thousands of articles about people, politics and government both in Ohio and nationwide.