Challenged Ohio law wasn't created to curtail protected speech, professor says

By Angela Underwood | Mar 30, 2018

LEESBURG, Fla. (Legal Newsline) – Beacon College professor Michael Lozano says regardless of the mode of technology used to publish ideas, the most important question to ask is, "What's the nature of the speech in question?"

Lozano - a former Florida public defender and present learning specialist and teacher at the Leesburg, Florida college, recently discussed with Legal Newsline a Feb. 28 order handed down by U.S. District Court for the Northern District of Ohio, Eastern Division Judge Sara Lioi. 

Lioi closed a complaint against three Ohio officials over allegations that a section of Ohio Revised Code violates the First and 14th Amendments regarding protected political expression on the internet.

The complaint brought against Ohio Attorney General Mike DeWine, Portage County Prosecuting Attorney Victor Vigluicci and Franklin County Prosecuting Attorney Ron O’Brien by Plunderbund Media LLC, John Michael Spinelli and the Portage County Tea Party Inc. argues the plaintiffs were “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,” according to the order.

“There was no First Amendment violation,” Lozano said. “A basic premise of being able to get into court on an issue is there has to be some sort of injury.”

There must be an utterance of protected speech followed by state action prohibiting such dialogue to violate the First Amendment, Lozano said, noting there was never any indication that the law suppressed or “chilled” any protected speech because the state did not threaten or imply prosecution to either the plaintiffs or any other person under the statute at any time.

So why even file a complaint?

“I wouldn't speculate as to the motives of the plaintiffs, but the statute they chose to attack wasn't created to abridge protected speech, nor was it ever applied in that manner,” Lozano said.

Lozano detailed how plaintiffs' fear of violation of Ohio Revised Code Section 2917.21(B)(2), which is a first-degree misdemeanor for the first offense, was initially meant to target abusive conduct via a telephone, specifically for obscene phone calls.

“Judge Lioi also mentioned that the courts have always interpreted the statute as aimed at preventing criminal conduct, not for the use of attacking protected speech,” Lozano said.

Now that communication has switched from landlines and black-and-white print to the internet, Lozano said: "When you look at the First Amendment and the modes of delivery for free thought in the 18th century, there's a huge difference between the printing press and a smartphone."

“Technology and innovations are constantly evolving; we should always focus on the main thrust of the First Amendment in cases like this one: political expression,” Lozano said. “While the method and technology used to disseminate those ideas are always factors in the analysis, the discussion will come down to one question: What's the nature of the speech in question?”

A futile complaint equals no future precedent, according to the professor.

“For the most part, it maintains the status quo as it relates to issues of standing and a motion to dismiss,” Lozano said. "However, if that statute in Ohio or a similar law in another state were applied differently, namely towards actual political expression/speech, you'd have an issue.”

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