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Plunderbund Media L.L.C. v. Dewine

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

February 28, 2018




         This matter is before the Court on the motion of defendants Mike DeWine (in his official capacity as Ohio Attorney General), Victor Vigluicci (in his official capacity as the prosecuting attorney for Portage County, Ohio), and Ron O'Brien (in his official capacity as the prosecuting attorney for Franklin County, Ohio) (collectively “defendants”) to dismiss the complaint of plaintiffs Plunderbund Media L.L.C. (“Plunderbund”), John Michael Spinelli (“Spinelli”), and the Portage County Tea Party, Inc. (“Tea Party”) (collectively “plaintiffs”). (Doc. No. 19 (“Mot.”).) Plaintiffs opposed the motion (Doc. No. 20 (“Opp'n”), and defendants filed a reply (Doc. No. 22 (“Reply”). For the reasons that follow, defendants' motion is granted.

         I. BACKGROUND

         According to the complaint, plaintiffs publish and engage in “provocative” constitutionally protected speech “online” regarding local, state, and national politics. (Doc. No. 1 (“Compl.”) ¶¶ 1, 4, 5, 6.) Plaintiffs allege that Ohio Rev. Code § 2917.21(B)(2) violates the First and Fourteenth Amendments to the United States Constitution because it criminalizes constitutionally protected political expression on the internet. (Id. ¶ 2.) Section 2917.21(B)(2) provides 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.

         Plaintiffs allege that defendants are authorized to enforce the statute (Compl. ¶¶ 7, 8, 9), and they are at risk of criminal prosecution if police or prosecutors believe that plaintiffs' online political expression is abusive or harassing[1] because the statutory exemption for mainstream media[2] does not apply to plaintiffs (id. ¶¶ 14-19). Violation of § 2917.21(B) is a first degree misdemeanor for the first offense, and a fifth degree felony for each subsequent offense. See § 2917.21(C)(2); Compl. ¶ 20, citing 2917.21(C)(2).

         In count one, plaintiffs allege that the statute restricts the content of speech and seek a declaration that § 2917.21(B)(2) is unconstitutionally overbroad. (Compl. ¶¶ 21-28.) In count two, plaintiffs claim that they have been chilled in the exercise of their right to engage in political speech under the First Amendment because of fear of prosecution and, unless § 2917.21(B)(2) is declared unconstitutional and its enforcement enjoined, plaintiffs will be irreparably harmed. (Id. ¶¶ 29-35.)

         Plaintiffs also allege that Ohio Rev. Code § 2917.21(B)(1) is unconstitutional to the extent that it prohibits abusing and harassing speech about a person, rather than directed to a person (id. ¶ 3), and to the extent that (B)(1) prohibits online expression for the purpose of abuse or harassment (id. at ¶ 18). Plaintiffs do not assert any count with respect to § 2917.21(B)(1) but, in their prayer, seek the same relief as for § 2917.21(B)(2). (See id. at 8-9.[3])

         On the same day that plaintiffs filed their complaint, they also filed a motion for a preliminary injunction. (Doc. No. 2.) The Court conducted a telephonic conference to discuss the motion, and the parties agreed that defendants' anticipated motion to dismiss should be resolved before the Court addressed the motion for injunctive relief. (See Minute Order and Order dated June 12, 2017.) The parties briefed defendants' motion to dismiss in accordance with the schedule established by the Court, and the motion is ripe for decision.


         A. Fed.R.Civ.P. 12(b)(1)

         Defendants bring their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.[4] Defendants contend that plaintiffs lack constitutional standing to bring this case because: (1) their allegations concerning prosecution under the statute are speculative, (2) Ohio courts have never interpreted the language in the statute to reach political speech or criticism of government officials, and (3) their subjectively chilled speech is insufficient to establish standing. (Mot. at 104.)

         Article III standing is an issue of subject matter jurisdiction properly decided under 12(b)(1).[5] Am. BioCare Inc. v. Howard & Howard Attorneys PLLC, 702 F. App'x 416, 419 (6th Cir. 2017) (citation omitted); Beck v. FCA U.S. LLC, No. 17-cv-10267, --F.Supp.3d--, 2017 WL 3448016, at *4 (E.D. Mich. Aug. 11, 2017) (lack of standing is properly considered as a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1)) (citing Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008)). “When the defendant challenges subject matter jurisdiction through a motion to dismiss, the plaintiff bears the burden of establishing jurisdiction.” Glenn v. Holder, 738 F.Supp.2d 718, 724 (E.D. Mich. 2010); Am. BioCare, 702 F. App'x at 419 (citation omitted).

         B. Article III Standing

         Article III of the United States Constitution limits a federal court's exercise of authority to “cases” or “controversies.” U.S. Const. art. III § 2 cl.1. The Supreme Court has enumerated the following familiar elements necessary to establishing standing:

First, Plaintiff must have suffered an injury in fact-an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Parsons v. U.S. Dep't of Justice, 801 F.3d 701, 710 (6th Cir. 2015) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

         “These elements are commonly referred to as the ‘injury-in-fact, ' ‘causation, ' and ‘redressability' requirements.” Phillips v. DeWine, 841 F.3d 405, 414 (6th Cir. 2016) (quoting Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008)); McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016) (quoting Lujan, 504 U.S. at 560-61). Article III standing is “the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

         “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.” Binno v. Am. Bar Ass'n, 826 F.3d 338, 344 (6th Cir. 2016) (citation omitted). “The party seeking to invoke federal jurisdiction bears the burden to demonstrate standing and he ‘must plead its components with specificity.'” Daubenmire v. City of Columbus, 507 F.3d 383, 388 (6th Cir. 2007) (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999) (further citation omitted)); see also Phillips, 841 F.3d at 414 (“‘a plaintiff must demonstrate standing for each claim he seeks to press'”) (quoting Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (further citation omitted)). Plaintiffs' allegation that § 2917.21(B)(2) is overbroad does not excuse them from establishing Article III standing.[6]

         C. Analysis

To establish standing for a free-speech claim, the Plaintiffs generally must show that “the rule, policy or law in question has explicitly prohibited or proscribed conduct on the[ir] part.” Parsons v. U.S. Dep't of Justice, 801 F.3d 701, 711 (6th Cir. 2015) (citing Clapper v. Amnesty Int'l USA, [568 U.S. 398], 133 S.Ct. 1138, 1153, 185 L.Ed.2d 264 (2013); Nat'l Right to Life Political Action Comm'n v. Connor, 323 F.3d 684 (8th Cir. 2003)). In the typical case, a statute must be enforced against the plaintiff before he may challenge its constitutionality, but pre-enforcement is available in some contexts if “threatened enforcement [is] sufficiently imminent”-that is, there is “a credible threat” that the provision will be enforced against the plaintiff. Susan B. Anthony List v. Driehaus, ____U.S. ___, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014).

Phillips, 841 F.3d at 415.

         Where, as here, plaintiffs seek declaratory and injunctive relief, “a pre-enforcement challenge may be made before the actual completion of an injury-in-fact.” Glenn v. Holder, 690 F.3d 417, 421 (6th Cir. 2012) (quoting Grendell v. Ohio Supreme Court,252 F.3d 828, 832 (6th Cir. 2001)). But plaintiffs must nevertheless demonstrate constitutional standing. “[A] plaintiff satisfies the injury-in-fact requirement in the pre-enforcement context where [1] he alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by statute, and [2] there exists a credible threat of prosecution thereunder.” McKay, 823 F.3d at ...

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