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Ohio’s Pandemic Reform Bill: Good and Bad

FOR IMMEDIATE RELEASE
March 24, 2021

 

Ohio General Assembly adopted key 1851 Center recommendations, but other than leveling legal playing field, leaves Governor and ODH unchecked

 

Columbus, OH – In overriding the Ohio Governor’s veto and enacting Senate Bill 22, the Ohio General Assembly codified several 1851 Center recommendations that will benefit Ohioans.

Upon the 1851 Center’s advice and request, the Ohio House of Representatives added the following safeguards to House Bill 90 before rolling that Bill into Senate Bill 22:

  1. Reining in Local Health Department Authority: Past General Assemblies had granted local health department breathtakingly-broad powers. SB22 universally addresses these hidden landmines by (1) limiting “quarantine and isolation” powers to use on only those “who have been medically diagnosed with the disease or have come in direct contact with someone has been medically diagnosed;” and (2) requiring local administrative orders to “apply only to specific persons” and forbidding “any order or regulation that applies to a class of persons.”
  2. Access to Justice in One’s Home County: The Governor and Health Department employed questionable legal tactics to move all legal challenges to pandemic orders to either Franklin County or the Court of Claims in Columbus. SB22 vests Ohioans with the right to challenge pandemic orders in their home counties before their own elected judges.
  3. Access to Legal Representation to Challenge Pandemic Orders: While many state and federal provisions require government to compensate someone who has successfully vindicated his constitutional rights in court, no such provision applied when Ohioans challenged the constitutionality of pandemic orders, leaving many Ohioans (already cut off from their incomes) without the ability to acquire legal representation to protect their rights. SB22 requires the State to pay “reasonable attorneys fees” to those who “successfully challenge an order or rule.”
  4. Preclusion of Shifting Justifications for Administrative Power: After the 1851 Center won several lawsuits challenging the constitutionality of R.C. 3701.13, the State began claiming that its authority actually arose from a different statute. SB22 closes this loophole by applying its limits to all like-kind statutes.
  5. Preclusion of Gamesmanship, Should the General Assembly Act: The original version of the Bill failed to prevent the Governor from simply re-enacting a restriction invalidated by the General Assembly through pretextually labeling the restriction differently. SB22 closes this loophole by forbidding “the reissuance of any restriction contained in the rescinded special or standing order or rule.”
  6. Addition of a “Severability Clause”: SB22 ensures that even if one provision within the Bill is “held invalid, the invalidity does not affect other items of law contain this act.”  This means that the 1851 Center’s recommended policies will endure even if the General Assembly’s other reforms face legal headwinds.

In addition to safeguards recommended and/or written by the 1851 Center, the Bill contains the following limits:

  • A declared “State of Emergency” may not last longer than 90 days, meaning the Governor’s emergency rulemaking authority also expires with 90 days.
  • The General Assembly maintains the power to terminate the “State of Emergency” Declaration after 30 days, thus cutting the Governor’s emergency rulemaking authority to 30 days as well.
  • The General Assembly maintains the power to rescind any pandemic-related administrative rule and order through adopting a resolution doing so.

“It’s unlikely that the General Assembly will ever rescind a rule or order or terminate a state of emergency, and the reform bill leaves the Governor and Ohio Department of Health nearly as unchecked as they have been over the past year, meaning that the legislative branch has essentially passed the buck to the judicial branch to protect Ohioans,” explained 1851 Center Executive Director Maurice Thompson.

“However, we appreciate the General Assembly leveling the playing field for Ohioans who need to vindicate their rights in Ohio courts, and we look forward to carrying on that fight, now that the State’s gamesmanship has been put to rest. We are also pleased to be able to concentrate our efforts on Ohio’s Governor and Department of Health, with local health departments now appropriately disarmed.”

Read the Read the 1851 Center’s February 16, 2021 Recommendations to the House here.

Watch the 1851 Center’s Testimony on the Bill:

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

Prohibiting Undercover Reporting on Political Campaigns Violates Constitution

Legal Center: Ohio law violates non-profit journalists’ right to investigative and report on political campaigns

Columbus, OH – The 1851 Center for Constitutional Law today moved to enjoin an Ohio statute that forbids undercover investigation of political campaigns by nonprofit journalists. The legal action was brought on behalf of Project Veritas, a national nonprofit investigative journalism organization, and its president and founder James O’Keefe.

In 2018, a Democratic consulting firm filed an Ohio Elections Commission complaint against Project Veritas and O’Keefe, alleging that the nonprofit and its founder violated the reporting restriction through undercover investigation of the Strickland and Clinton campaigns in Ohio. The OEC sided with Project Veritas due to procedural rules, but left open the possibility of punishing journalists for similar undercover reporting in the future.

“State and federal constitutions were written to limit government and protect citizens from it,” said 1851 Center Executive Director Maurice Thompson. “Ohio’s reporting restriction turns these constitutional guarantees upside down. While elected officials claim the authority to violate our privacy at an unprecedented level, Ohio’s political class simultaneously insists upon protection from the scrutiny of investigative journalism.”

Pursuant to R.C. 3517, those who go undercover within political campaigns to acquire and report information without the approval of the campaign are subject to prosecution, incarceration and fines, even if their motive is to provide truthful and useful information to the public. The 1851 Center is asking the United States District Court for the Southern District of Ohio to declare this enactment unconstitutional.

The 1851 Center’s complaint and motion for preliminary injunction assert that the state’s reporting restriction violates investigative journalists’ freedom of speech and expression by restraining and punishing meaningful political journalism, explaining as follows:

· The freedom of the press protected by the First Amendment includes the right of every citizen to record and report on government officials and candidates, even (and especially) without consent.

· Politicians and public officials have no right to special protection from being recorded when they are on the job or campaigning for office, especially given that no other entity, business or individual in Ohio enjoys such protections.

· The Reporting Restriction impermissibly punishes reporting facts learned when undercover within political campaigns, even when those facts are entirely true and helpful to the public.

“There is no such thing as a justifiable secret in a political campaign,” said Thompson. “In an age where political campaigns maintain the power to deceive without meaningful scrutiny from traditional media, the need for undercover investigative journalism has never been greater.”

The Supreme Court quoted James Madison in New York Times v. Sullivan for the proposition that “the censorial power is in the people over the Government, and not in the Government over the people.”

Read the 1851 Center’s Complaint HERE.

Read the 1851 Center’s Motion for Preliminary Injunction HERE.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and searches and seizures.

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Ohio Cities Cannot Prohibit Use of Security Alarms

Cincinnati’s “alarm tax” violates homeowners’ right to communicate, freedom from double-taxation

The 1851 Center for Constitutional Law has moved to invalidate a municipal ordinance that forbids homeowners from protecting themselves with a home security alarm unless they first pay a punitive tax to the City of Cincinnati.

The legal action against the City of Cincinnati is brought on behalf of several homeowners and real estate investors who face $800 fines for simply using home security alarms to protect their homes, rental properties, and vacant investment properties, i.e. calling the police to inform them of potential criminal activity at the property.

Through its Motion for Preliminary Injunction, the 1851 Center explains that the City’s ordinance violates the Freedom of Speech by restraining and punishing the truthful reporting of criminal conduct while also impermissibly double-taxing homeowners who already pay for police protection through their general taxes:

The Ohio Constitution protects homeowners’ fundamental right to defend themselves and their houses, and cities cannot force homeowners to pay the City prior to exercising this right, especially when police assistance is not requested.

Speech in defense of oneself and one’s property is just as vital to protect as political speech. Homeowners maintain a First Amendment right to share evidence of criminal conduct on their properties with law enforcement, whether directly or through hiring an alarm company.

Cincinnati’s “alarm fee” is an unconstitutional tax because the City spends it on anything it likes, annually collects more than twice what it spends on security alarm issues, and the fees are imposed irrespective of whether homeowners with alarms actually use more city services.

“Ohio cities’ new practice of forcing homeowners to pay a fee for the privilege of protecting themselves, their families, and their homes with a security alarm is not just an unconstitutional tax, but an outright scam, taxing those who report crime and forcing taxpayers to pay twice for police protection,” explained 1851 Center Executive Director Maurice Thompson. “Government should encourage self-defense and crime-reporting, rather than prohibiting such socially beneficial conduct.”

The City of Cincinnati demands $100 up-front before one may use a security alarm, and those who protect themselves with security alarms without paying the fee are fined up to $800. This prohibition applies even to “local alarms” that do not involve police.

The case is pending before Judge Michael Barrett of the United States District Court for the Southern District of Ohio. However, the 1851 Center has moved to remand the case to state court

Read the 1851 Center’s Motion for Preliminary Injunction HERE.

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1851 to Supreme Court: Forced Funding of Unions Violates Free Speech

1851 Center Amicus Brief argues that government employees who aren’t union members can’t be forced to pay hundreds of dollars per year to unions

Columbus, OH – The 1851 Center for Constitutional Law petitioned the United States Supreme Court to rule in favor of the Petitioner in a case challenging the constitutionality of public sector unions’ power to force public employees to pay union “agency fees.”

In Janus v. AFSCME, the Petitioner argues that government employees who opt not to be union members cannot be forced to pay fees in lieu of membership dues, to the union. Petitioner Mark Janus argues that nonmember employees cannot be forced to pay such fees because unions use the fees to fund their collective bargaining advocacy, union collective bargaining advocacy is inherently political, and the First Amendment prohibits enactments forcing American to subsidize the private political speech of others.

This case is of particular importance in Ohio, where 1,062 separate public employers maintain collective bargaining agreements requiring public employees who are not union members to pay agency fees to unions or be fired. These agreements affect 312,506 Ohio public employees who are forced to pay fees that average $700 per year.

The 1851 Center Brief explains and argues as follows:

  • Just as the First Amendment prevents government from prohibiting speech, it prevents government from compelling individuals to express certain views or pay subsidies for speech to which they object.
  • Forcing public employees to subsidize unions’ collective bargaining advocacy is no different than forcing such employees to fund the lobbying of public officials, since unions advocate for highly ideological outcomes through collective bargaining that raise taxes and spending while protecting poor performance and blocking reforms.
  • Collective bargaining advocacy can often be injurious to nonmembers’ self interests whether through raising their taxes, ensuring their own layoffs, or supporting political views they oppose.
  • The exception to the freedom from forced political speech the Supreme Court previously created for unions overlooked the highly political, ideological, and controversial nature of the policies public sector unions advocate for through collective bargaining.

“Just as no public employee may be forced to fund a political party, no public employee should be forced to fund objectionable union advocacy that has an even greater impact on our everyday lives,” explained 1851 Center Executive Director Maurice Thompson. “A complete victory in Janus will protect dissenting employees’ freedom of speech. Equally important, it will end forced funding of government unions in Ohio and restore to its proper place the artificially-inflated political power unions have used to raise government spending and taxes while blocking important reforms.”

“Government unions’ legal fight to deny employees the right to choose displays that their acknowledgment that they offer too little value at too high of a price,” continued Thompson, “Other non-profit organizations operate on voluntary contributions, and so should unions.”

Janus v. AFSCME only affects the rights of public sector workers as against public sector unions. It does not address private sector agency fees, which would remain intact. Nor would a victory in Janus prevent labor unions from collecting voluntary contributions.

The 1851 Center’s amicus brief in Janus v. AFSCME was coauthored by labor policy analysis Jason A. Hart.

Read the 1851 Center’s Amicus Brief HERE

Read the 1851 Center’s Columbus Dispatch editorial supporting Right to Work HERE

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Court: $100 Per Day Fines for Yard Signs Unconstitutional

Ohio city’s ban on political yard signs except directly before and after elections violates free speech, property rights

August 30, 2017: Toledo, OH – A federal court prohibited an Ohio city from fining citizens who display political yard signs for longer than 67 days.

The ruling, made by Judge Jeffrey J. Helmick of the Northern District of Ohio, forbids the City from enforcing local zoning ordinances to stifle free speech. The Court’s Order stops the City from determining which signs are “political,” limiting the display of “political” yard signs on private property to periods of time just before or after an election, or imposing fines on citizens who display such signs.

The ruling comes in response to a First Amendment lawsuit filed by the 1851 Center for Constitutional Law on August 15, 2017 on behalf of independent Perrysburg City Council candidate Charles “Chip” Pfleghaar and other Perrysburg citizens seeking to display their discontent with Perrysburg’s elected officials.

The 1851 Center’s lawsuit asserts that prohibiting signs on private property – or limiting the display of such signs to just two months of the year – simply because the signs reference politicians, government, or public policy issues, violates the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

In late July the City’s zoning inspector ordered Mr. Pleghaar to remove two relatively-modest signs advocating for his own election to city council or face fines of up to $100 per day for each day he displayed the signs in his yard.

The City cited its own local ordinance prohibiting signs with political messages except directly before and after elections, which it had previously cited to order citizens to remove Donald Trump and Hillary Clinton signs, as well as signs advocating for lower property taxes. In support of the ordinance, the City claims it prohibits political signs “to enhance the physical appearance of the City . . . to create an appearance that is attractive . . . and to improve traffic safety.”

“Ohioans should remain free to use their private property however they would like, so long as they abstain from inflicting harm on others. This of course includes displaying yard signs criticizing incumbent politicians, advocating for lower taxes, or advertising a business. When Ohio cities attempt to regulate signs on private property, they both abridge our free speech and violate our property rights at the same time,” explains Maurice Thompson, Executive Director of the 1851 Center.

“Yard signs are an efficient way for a homeowner to criticize public officials and identify where he or she stands on an issue. These signs are particularly important to political outsiders with lower name identification and less-established donor and political networks, and likely the ultimate example of outsider-driven grass-roots politics, as the average homeowner lacks access to media outlets or the capacity to make large donations to candidates or issues.”

Read the Homeowners’ Complaint HERE

Read the Homeowners’ Motion for Preliminary Injunction HERE

Read the Court’s Order HERE

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Court: Ohio Mayor and His Lawyer Must Pay Sanctions to Family They Sued to Silence

Mayor’s lawsuit “frivolously” violated local bloggers’ right to free speech

Cleveland, OH – An Ohio Court ordered Maple Heights, Ohio Mayor Jeffery Lansky and his attorney to pay $9,395 in attorney’s fees and costs to internet critics they sued to silence.

In 2014, Lansky and his attorney, Brent English, filed a lawsuit for defamation and infliction of emotional distress, demanding “an amount in excess of $25,000” from Bill and Lynde Brownlee, husband and wife, after they questioned Lansky’s job performance on their blog, Maple Heights News

The 1851 Center took up the case and the Cuyahoga County Court of Common Pleas ruled for the family in late 2015. The court explained that “a primary purpose of the First Amendment is to encourage self-government by permitting comment and criticism of those charged with its leadership.”

The Court finalized the case, ordering the sanctions pursuant to two Ohio statues prohibiting “frivolous conduct” in litigation, Ohio Revised Code Section 2323.51 and Civil Rule 11.

“Those who would use the courts to silence their political opponents should take this ruling seriously,” explained Maurice Thompson, Executive Director of the 1851 Center.

“When criticizing public officials, Ohioans should not be bullied into silence for fear of an expensive lawsuit. Often, the possibility of an economic penalty such as this is the only means of persuading Ohio governments and local officials to respect constitutional rights.”

The Brownlees had written a short web article in the summer of 2014 questioning whether the Mayor had kept all of his campaign promises, and further questioning his tax and spending policies. The article strictly addressed the Mayor’s policies, and did not use insulting or harsh language. One prominent undercurrent to the case concerned whether political comments on citizen websites would be entitled to the same level of protection as mainstream news commentary.

Lansky v. Brownlee was litigated by the 1851 Center in cooperation with attorneys David Tryon and Brodie Butland of the law firm of Porter Wright in Cleveland, Ohio.

Read the Court’s Order HERE

Read the Court’s Original Order Protecting Free Speech HERE

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Should Public Officials Be Held Liable for Violating Ohioans’ Rights?

Court considers whether Secretary of State Jon Husted should be required to compensate Ohioans whose First Amendment rights he violated

Cincinnati, OH – On Thursday, December 10, the Sixth Circuit Court of Appeals heard oral arguments on whether government officials must reimburse the victims of their unconstitutional conduct for the costs and expenses imposed by that conduct.

In late 2013, federal judge Michael Watson sided with the 1851 Center in Citizens in Charge v. Husted, determining that a “residency requirement” reenacted through Senate Bill 47 violated Ohioans’ First Amendment rights by prohibiting them from working with out-of-state petition circulators on their initiative. Thereafter, the Ohio Attorney General insisted that the Secretary of State Husted was nevertheless “immune” from damages for the harm he imposed on a conservative pension reform effort in Cincinnati.

In March, Judge Watson denied the plea for immunity, explaining that Mr. Husted may indeed be liable for the harm he inflicted because the plaintiffs’ constitutional rights were “clearly established,” and any reasonable public official would have known that the residency requirement was unconstitutional (the same requirement had been held invalid in 2008).

The Attorney General appealed, even though Mr. Husted does not deny that he violated Ohioans’ rights. Instead he claims that, as a government official, he should be absolutely immune from personal liability when enforcing statutes enacted by the legislature, irrespective of their constitutionality.

The parties filed briefs, and on December 10, the 1851 Center argued that government officers should be personally liable, rather than “immune,” when they violate Ohioans’ clear constitutional rights.

“Public officials should be held accountable for the harm they inflict when violating Ohioans’ rights, not their innocent victims,” according to Maurice Thompson, Executive Director of the 1851 Center. “If public officials from the governor down through the police know that they will be liable for enforcing an unconstitutional law, they are far more likely to take Ohioans’ constitutional rights seriously. We would like to end the ‘I don’t make the law; I just enforce it’ mentality that many public officials use to escape liability for the harm they cause.”

If the State prevails in its appeal, public officials – whether police, bureaucrats, or politicians – may well be authorized to violate Ohioans’ rights without consequence.

Capital elections law professor Mark Brown is supporting the 1851 Center’s position with an amicus brief, while Ohio State elections law professor Daniel P. Tokaji has called denial of immunity here “dead-on right,” explaining “[s]ome qualified-immunity cases are difficult. Not this one.”

The oral argument occurred at 9:30am on Thursday December 10. You can listen to the archived oral argument HERE

Read the 1851 Center’s Appellate Brief HERE

Read media reports on this case HERE

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Court: Ohioans Have Right to Criticize the Performance of Public Officials

Maple Heights Mayor sued to silence local bloggers for “defamation” and “emotional distress,” and violated their right to free speech in doing so

Columbus, OH – An Ohio Court late Friday dismissed the case of a Cleveland-area Mayor who sued a local family for “an amount in excess of $25,000” after they questioned his job performance on their blog.

The 1851 Center for Constitutional Law’s victory on behalf of Bill and Lynde Brownlee, husband and wife, and their small-town news website, Maple Heights News, reaffirms the principle that citizens’ criticisms of their government officials cannot be silenced when those officials file lawsuits for “defamation” and “intentional infliction of emotional distress,” as Mayor Jeff Lansky had attempted here.

The ruling should provide considerable help to both mainstream news outlets and alternative politically-minded journalists and organizations.

The Brownlees had written a short web article in the summer of 2014 questioning whether the Mayor had kept all of his campaign promises, and further questioning his tax and spending policies. The article strictly addressed the Mayor’s policies, and did not use insulting or harsh language.

In a 27-page Judgment Entry affirming that Ohio public officials cannot prevail in lawsuits merely in response to political speech, Judge Jose Villanueva of the Cuyahoga County Court of Common Pleas held as follows:

  • “Public discussion of public officials is a fundamental principle of the American form of government, and thus a primary purpose of the First Amendment is to encourage self-government by permitting comment and criticism of those charged with its leadership.”
  • “Expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution as a valid exercise of freedom of the press [and] an alleged defamatory statement is not actionable if the statement constitutes political opinion speech protected by absolute immunity.
  • The statements were obviously opinion because “the Article is labeled ‘editorial’ and appeared in the ‘editorial’ section of a Website created for the avowed purpose of giving voice to the residents of Maple Heights. . . labeling a statement as ‘editorial’ puts readers on notice that the statements constitute the writer’s opinions.”
  • “A reasonable reader would arguably understand the Article as an opinion piece critiquing events in the city during the Mayor’s current term . . . This type of statement is not actionable in defamation.”
  • As to the Mayor’s “emotional distress” claim, “the defendants’ conduct in writing and publishing an Article constituting political commentary does not rise to the level of conduct necessary to prove [that claim].

The Court further explained that Ohioans are free to share their own conclusions about whether a particular official is ultimately responsible for certain bad outcomes, irrespective of whether that conclusion is technically correct: “It is not unreasonable to attribute actions or events that occur during a Mayor’s administration directly to the Mayor, despite the fact that others were also involved in carrying out the actions or events . . . and the Brownlees reasonably believed that the events and actions discussed in the Article could be attributed to Mayor Lansky. . . Merely because Mayor Lansky disagrees with their interpretation of the facts does not amount to actual malice.”

“When voicing their concerns over elected officials’ performance, Ohioans should not be bullied into silence for fear of an expensive lawsuit,” explained Maurice Thompson, Executive Director of the 1851 Center. “The right to criticize an elected official’s poor performance is, as a necessary first step to those officials’ removal from office, the highest, best, and most constitutionally-protected form of free speech. It should be encouraged, rather than suppressed.”

To emphasize the need to deter such lawsuits in the future, the 1851 Center’s defense of the Brownlees includes a counterclaim to declare Mayor Lansky a “vexatious litigator,” and seeks sanctions against both the Mayor and his lawyer, Brent English, who was recently arrested for frivolous litigation elsewhere. The Court indicated that separate hearings would now be held on those matters.

One prominent undercurrent to the case concerns whether political comments on citizen websites are entitled to the same level of protection as mainstream newspaper, television, and radio media. The Court stressed that under the Ohio Constitution, which is more protective of free speech, “internet” speech is almost always likely to be viewed as “opinion,” and therefore immune from lawsuits for defamation and emotional distress. The Ohio Constitution guarantees “[e]very citizen may freely speak, write, and publish his sentiments on all subjects,” and “no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

Read the Court’s Order HERE

 

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Federal Court: SB 47 Restrictions on Petition Circulation Unconstitutional

Key features of Senate Bill 47 “reform” violate First Amendment speech and associational rights of Ohioans, restrict free trade

Columbus, OH – A federal court enjoined the state from enforcing Senate Bill 47’s new limits on Ohioans’ Initiative and Referendum rights. Specifically, the Court held that Ohio’s new ban on Ohioans contracting with non-Ohioans to circulate initiative petitions violates Ohioans’ First Amendment Rights.

The ruling, made by Judge Watson of the Columbus division of the Southern District of Ohio, paves the way for Ohioans advancing the Workplace Freedom Amendment and other freedom-oriented ballot issues to resume association and contracts with professional out-of-state signature gatherers.

The legal action was filed on behalf of Ohioans for Workplace Freedom and Cincinnati for Pension Reform. OWF is currently gathering signatures to place a right-to-work amendment before voters; and CPR incurred significant additional last-minute costs attempting to utilize only in-state petitioners.

In his 27 page decision, Judge Watson, explained that “petition circulation – whether for candidates or issues – constitutes core political speech protected by the First Amendment,” and “laws prohibiting nonresidents from acting as petition circulators significantly burden political speech because they substantially reduce the number of petition circulators and are therefore subject to strict scrutiny.”

The Order concluded as follows: “The Court holds that Plaintiffs are likely to succeed on the merits of their claim that R.C. 3503.06(C)(1)(a) violates the First Amendment because it substantially burdens core political speech and is not narrowly tailored to serve Ohio’s compelling interest in curbing fraud in the election process.”

The lawsuit sought to restore Ohioans freedom to contract or associate with any and all American citizens to convey their message and advance their issue to the ballot. The lawsuit further seeks to invalidate the prohibition, applicable only to those associated with the issue, on gathering signatures during certain critical periods.

“We’re grateful for the Court’s thorough ruling. This Act is a set of back-door tactics to effectively eliminate initiative and referendum in Ohio, by eliminating many of those who do the actual work of gathering signatures on important issues” said Maurice Thompson, Executive Director of the 1851 Center.

“Initiative and referendum supply an important check on arbitrary government, and also supply citizens with the opportunity to act as civic adults – – taking the lawmaking power into their own hands rather than begging the legislature for change.”

The only attempt at using exclusively in-state circulators since the new statute’s enactment, a referendum effort on behalf of internet sweepstakes businesses, had failed dramatically, with less than 37 percent of submitted signatures found to be valid.

Read the Court’s Order Granting Ohioans for Workplace Freedom’s Motion for Preliminary Injunction HERE.

March 16, 2015: Columbus Dispatch: Judge finds Husted liable for enforcing unconstitutional law

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U.S. Supreme Court Petitioned to Review Ohio PAC Laws

1851 Center asks United States Supreme Court to review Ohio Political Action Committee regulations on behalf of Geauga County blogger’s First Amendment rights

Columbus, OH – The 1851 Center for Constitutional Law, in cooperation with the Washington D.C.-based Center for Competitive Politics, late yesterday petitioned the United States Supreme Court to weigh in on the nation’s strictest Political Action Committee regulations.

The legal action is filed on behalf of Edmund Corsi, a Cleveland-area blogger who faces prosecution after blogging about state and local political issues, authoring a pamphlet critical of local politicians, and hosting an informal political discussion group. The state contends that Ohio’s PAC laws required Mr. Corsi and others, known as “Geauga Constitutional Council,” to first register with the state and hire a treasurer, and then disclose his home address on his pamphlet and blog, and that by failing to do so, Corsi is subject to criminal penalties and civil fines. Mr. Corsi was referred for prosecution by one of the politicians he criticized – – Geauga County Republican Party chairman Edward Ryder.

The United States Supreme Court has repeatedly confirmed that political speech, even when through group association, in pamphlets or on the internet, is afforded the greatest constitutional protection.

The Court has already once struck down Ohio’s Political Action Committee regulation, in McIntyre v. Ohio Elections Commission in 1995. There, the Court chastised the Ohio Supreme Court and the OEC for upholding the regulations after state officials attempted to prosecute a senior citizen for failing to include a “disclaimer” on her homemade flyer advocating against a local tax increase.

Nevertheless, the Ohio Elections Commission maintains that the re-written regulations still require groups of two or more Ohioans who communicate political thoughts to first register as a Political Action Committee, and thereby submit to reporting, disclaimer, and disclosure requirements. Ohio Courts applied no scrutiny to the OEC, and the Ohio Supreme Court voted 4-3 to sidestep the issue.

This case presents the first opportunity for a federal court to analyze application of the re-written PAC regulations, as well as the first opportunity to consider the effect of the Court’s landmark Citizens United decision on Ohio’s campaign finance regulations.

The Petition for Certiorari presents the following legal questions to the Court:

  1. May the major purpose test for political committee status, established by this Court in Buckley v. Valeo and FEC v. Mass. Citizens for Life, be satisfied without finding that regulated activity comprises the majority of an organization’s activity or expenditures?
  1. May a state meet its burden of demonstrating an organization’s major purpose without determining the portion of its expenditures directed toward political communications?

In addressing these issues, the Petition explains:

  • The costs of complying with the PAC regulations, which includes reporting and disclaimer requirements, administrative burdens, the hiring of a treasurer, and the loss of privacy and anonymity of those who speak out by effectively requiring the disclose of the author’s name and home address on government filing, has the effect of silencing protected speech.
  • The Ohio Elections Commission members improperly guess at the “primary or major purpose” of the group, without considering whether they have spent money on politics, how much money, or other non-campaign-related activities.
  • In involuntarily committing groups of citizens not primarily engaged in elections as PACs, the OEC improperly overanalyzes isolated Facebook and blogs posts and informal “mission statements.”

“Ohio’s PAC regulations have long been considered the most oppressive in the nation, and the Ohio Elections Commission’s application of those regulations has rightfully been the source of national criticism” said Maurice Thompson, Executive Director of the 1851 Center. “Meanwhile, Ohio courts, including our highest court, continue to make high-profile mistakes and oversights on basic First Amendment doctrine, requiring Ohioans to look to federal courts to protect their rights. The First Amendment does not allow politically-appointed OEC bureaucrats and political opponents to use PAC regulations to silence the speech of those who criticize government, using the loss of privacy and expensive reporting requirements of PAC regulations as leverage to intimidate and threaten those expressing differing views, as has been done here.”

Thompson added, “While many Americans fret over government permitting speech by ‘super-PACs,’ they should be more concerned about shocking amount of everyday grass-roots political speech that Ohio is forcing into PAC status – from lawn signs to Facebook pages – and thus essentially prohibiting, at the very same time.”

The case is particularly significant for opponents of local tax levies and “tea party” groups, many of whom are likely to be characterized as Political Action Committees, if the Ohio Election Commission’s ruling is not eventually overturned.


Read The Geauga Constitutional Council’s Petition for Certiorari here.


September 10, 2013: The Plain Dealer: Edmund Corsi’s political blog and activism that triggered Ohio election complaint now sits before U.S. Supreme Court

September 6, 2013: Wall Street Journal: Bradley Smith: The Supreme Court and Ed Corsi’s Life of Political Crime

July 11, 2013: Forbes: In Today’s America, Consult Your Attorney Before Speaking Freely