United States District Court, N.D. Ohio, Eastern Division
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
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.
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)
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.
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 because the statutory exemption for
mainstream media 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).
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. ¶¶
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.)
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.
bring their motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(1) for lack of subject matter
jurisdiction. 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.
III standing is an issue of subject matter jurisdiction
properly decided under 12(b)(1). 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).
Article III Standing
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)).
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).
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
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.
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  he alleges an intention to
engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by statute,
and  there exists a credible threat of
prosecution thereunder.” McKay, 823 F.3d at