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Johnson v. Edison Media Research, Inc

United States District Court, S.D. Ohio, Eastern Division

May 10, 2017

PETER M. JOHNSON, Plaintiff,

          Terence P. Kemp Magistrate Judge



         This matter is before the Court on Defendant's Motion to Dismiss. (ECF No. 18.) For the following reasons, Defendant's Motion is GRANTED.

         I. Background

         On March 15, 2016, Plaintiff Peter M. Johnson voted in the presidential primary election at his local precinct in the City of Columbus, Ohio. (Complaint ("Compl.") ¶ 1, ECF No. 1.) The Defendant, Edison Media Research ("Edison"), is a New Jersey polling corporation, which conducted exit polls during the primary election at various polling stations throughout Ohio in order to represent the election results for the State of Ohio as a whole. (Id. ¶¶ 6-9.) Plaintiff brings this action under 42 U.S.C. § 1983 asserting that Edison violated his First Amendment rights by refusing to share with him its unadjusted polling data.

         Edison conducted the exit polls by interviewing voters after their ballot was cast about who they voted for, particular issues important to that voter, and demographic information. (Id. ¶ 10.) Participation in the exit polling was voluntary and anonymous. Plaintiff does not state whether or not he participated in such an exit poll on the primary election day at issue.

         Plaintiff alleges that the result of the exit polls Edison conducted in Ohio on March 15, 2016 did not match the actual election outcomes when the votes were counted. (Id. ¶ 11.) Thereafter, according to Plaintiff, the State of Ohio provided "detailed records of voter demographics and actual election outcomes" to Edison after the votes were counted, which Edison used to adjust the results of its exit poll to match. (Id. ¶ 13-14.) Plaintiff requested access to the initial exit polling data Edison acquired before it was adjusted for demographic and actual election outcomes. Edison denied Plaintiffs request, explaining that the unadjusted results are only available to subscribing news organizations that comprise the National Election Pool, which include ABC, CBS, CNN, Fox, NBC, and the Associated Press. (Plaintiffs Response in Opposition to Defendant's Motion to Dismiss ("PI. Opp.") at 3, ECF No. 6; Compl. ¶ 23.)

         Plaintiff filed this claim against Edison Media Research under § 1983 alleging that Edison violated his First Amendment speech rights by refusing to provide him access to its unadjusted data without a subscription fee. (Id. ¶ 2.) Defendant has filed a motion to dismiss for failure to state a claim for relief (ECF No. 4), which is now before the Court for consideration.

         II. Standard

         Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Such an action will be dismissed where "there is no law to support the claims made" or where "the facts alleged are insufficient to state a claim." Stew Farm, Ltd. v. Natural Res. Conservation Serv., No. 2:12-cv-299, 2013 WL 4517825, at *3 (S.D. Ohio Aug. 26, 2013) (citing Ranch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978)). Federal Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); see also Bell Ail. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To meet this standard, a complaint must contain sufficient factual allegations to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Igbal, 556 U.S. 662, 678 (2009). A complaint will not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement'" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. (quoting Twombly, 550 U.S. at 557).

         Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and accept all of the complaint's well-pleaded factual allegations as true. Grindstqffv. Green, 133 F.3d 416, 421 (6th Cir. 1998).

         III. Analysis

         Plaintiff argues that exit polls are protected speech under the First Amendment of the United States Constitution, and that Edison is violating his rights by refusing to provide him with the unadjusted exit polling data without a subscription fee. (PL Opp. at 10 (citing The Daily Herald Co. vMunro, 838 F.2d 380, 384 (9th Cir. 1988).) He asserts that exit polls are protected speech because "the information gathered and disseminated in 'exit polls' goes to the heart of the democratic process, " and because '"exit polls' provide a valued source of reliable data about voter behavior." (PI. Opp. at 5.) However, Defendant correctly asserts that even assuming exit polls are protected speech, Plaintiffs claim still fails because he has not alleged sufficient facts to establish that Edison is a state actor.

         A. 42 U.S.C. ยง ...

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