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Monday, October 14, 2019

Ohio judge dismisses complaint by political blog over state's internet harassment law

By Angela Underwood | Mar 27, 2018

AKRON, Ohio (Legal Newsline) – A federal judge has tossed out a lawsuit against the state's attorney general and two county prosecuting attorneys filed by plaintiffs who alleged that a state law violates the First and 14th Amendments "because it criminalizes constitutionally protected political expression on the internet."

In a Feb. 28 order, U.S. District Court for the Northern District of Ohio, Eastern Division Judge Sara Lioi dismissed and closed a case against Ohio Attorney General Mike DeWine, Portage County Prosecuting Attorney Victor Vigluicci and Franklin County Prosecuting Attorney Ron O’Brien that was filed by Plunderbund Media LLC, John Michael Spinelli and the Portage County Tea Party Inc. 

Plunderbund and the other plaintiffs allege they publish "provocative" constitutionally protected speech online regarding local, state, and national politics, the opinion states.

They argue they are “at risk of criminal prosecution if police or prosecutors believe that plaintiffs’ online political expression is abusive or harassing because the statutory exemption for mainstream media does not apply to plaintiffs. Violation of 2917.21(B)(2) is a first degree misdemeanor for the first offense, and a fifth degree felony for each subsequent offense,” according to the opinion.

Section 2917.21(B)(2) states that "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," the opinion states.

In June 2017, Plunderbund filed both a complaint and a motion for preliminary injunction. However the defendants deemed that plaintiffs' allegations concerning prosecution under the statute are speculative, according to the opinion.

With the case before here, Lioi notes that as it stands, Article III limits her rule over controversy, citing Binno v. Am. Bar. Ass’n. 2016 as precedent.

“'If a party does not have standing to bring an action, then the court has no authority to hear the matter and must dismiss the case,'” Lioi cited in the opinion.

In her analysis, Lioi brings up "no injury-in-fact," noting that since the plaintiffs did not allege "that they intend to engage in political expression online for the purpose of abusing or harassing government officials, public figures, or any person,” then there is no actual incidence that has to be protected by statutory standing.

Furthermore, Plunderbund’s fear of prosecution is speculative and conjectural, according to Lioi, who also rules that the plaintiffs' argument of subjective chill is insufficient to establish injury. 

With “no credible threat of prosecution," "no evidence that plaintiffs (or anyone else) have ever been warned, threatened or prosecuted under the statute for political expression" and or that "Ohio courts construe 2917.21(B) narrowly,” as noted in the opinion, Lioi concluded her decision.

“For all of the foregoing reasons, the court finds that plaintiffs lack standing under Article III to assert their claims with respect to Ohio Rev. Code § 2917.21(B)(2).14,” Lioi wrote in the opinion. “In the absence of standing, the court lacks subject matter jurisdiction over this case. Accordingly, defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is granted. This case is dismissed and closed.”

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U.S. District Court for the Northern District of Ohio Akron Division