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Project Veritas v. Ohio Elections Commission

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

November 20, 2019

PROJECT VERITAS, et al., Plaintiffs,
v.
OHIO ELECTION COMMISSION, et al., Defendants.

          Chelsey M. Vascura, Magistrate Judge.

          OPINION & ORDER

          EDMUND A. SARGUS, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for consideration of Plaintiffs' Motion for Preliminary Injunction (ECF No. 5), which alleges that Ohio Revised Code § 3517.21(A)(1) violates Plaintiffs' First Amendment rights. The Court held oral argument on Plaintiffs' Motion for Preliminary Injunction, which is now ripe for review. For the reasons that follow, the Court DENIES Plaintiffs' Motion for Preliminary Injunction.

         I. BACKGROUND FACTS

         a. Ohio Revised Code S 3517.21(A)(1)

         Ohio Revised Code § 3517.21(A)(1) provides:

(A) No. person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
(1) Serve, or place another person to serve, as an agent or employee in the election campaign organization of a candidate for the purpose of acting to impede the conduct of the candidate's campaign for nomination or election or of reporting information to the employee's employer or the agent's principal without the knowledge of the candidate or the candidate's organization;

         Violation of this provision is a first-degree misdemeanor punishable by up to six months imprisonment, a $5, 000 fine, or both. Ohio Rev. Code §§ 3599.40, 3517.992(V). Before a prosecution may commence under the statute, however, a complaint must be filed with the Ohio Election Commission ("the Commission") and all administrative proceedings must be completed. Ohio Rev. Code §§ 3517.21(C), 3517.153(C). Established in 1974 and reformulated in 1995, the Commission is an independent agency consisting of seven members, six of whom are appointed by the governor on the recommendation of the combined state House and Senate caucuses of the major political parties. Three members are appointed from each of the two major political parties and the seventh is an unaffiliated elector appointed by the other six members. All members serve five-year terms. See Ohio Elections Commission History, available at http://elc.ohio.gov/Historv.stm (last visited November 15, 2019).

         "Any person" may file a complaint with the Commission, by affidavit and made on personal knowledge and subject to the penalties for perjury, alleging a violation of the statute. Ohio Rev. Code § 3517.153(A). The secretary of state or an official at the board of elections may also file a complaint. Id.

         Once a complaint is filed, the Commission proceeds with a statutory hearing procedure set forth in Ohio Revised Code § 3517.154 to § 3517.157. Ohio Rev. Code §§ 3517.21(C), 3517.153(C). If a complaint is filed within 60 days of a primary election or within 90 days of a general election, the Commission will hold an "expedited" probable cause hearing within two business days of determining such a hearing is necessary. Ohio Rev. Code §§ 3517.154(A)(2)(b), 3517.156(B)(1). A three-member panel decides whether there is probable cause to believe that "the failure to comply with or the violation of a law alleged in the complaint has occurred." Ohio Rev. Code § 3517.156(A), (C). If so, the panel must refer the case to the full Commission for an adjudicatory hearing to be held within ten days after the referral. Ohio Rev. Code § 3517.156(C)(2).

         If an expedited hearing is not required, the Commission will hold a preliminary review hearing on the complaint, either by a probable cause panel or the full Commission. Ohio Admin. Code § 3517-1-11(A); (see also ECF No. 14-1, Richter Aff ¶¶ 6-7.) The parties may submit briefs before the hearing and appear at the hearing to make arguments to the Commission, but are not required to do either. (Id. at ¶ 6). The Commission will not hear arguments, receive evidence, or take testimony unless the parties have stipulated to do so and a majority of the Commission members agree, or if any member wishes to request specific information that will aid in the proper determination of the matter at that stage. Ohio Admin. Code § 3517-1-11(A)(1). At this preliminary review stage, the body hearing the case reviews the pleadings, evidence, and motions before it in order to determine jurisdiction, sufficiency of the complaint, and whether probable cause exists for the full Commission to determine whether a violation has occurred. Ohio Admin. Code § 3517-1-11(A). If the review is held before a probable cause panel, the panel may dismiss the complaint or find sufficient probable cause exists that a violation occurred and recommend the Commission impose a penalty, refer the matter for prosecution, or find good cause exists to not impose a fine or refer the matter for prosecution. Id. If the preliminary review is before the full Commission, the Commission may take several actions, including setting the matter for a full hearing or making a final disposition by dismissing the case, imposing a penalty, referring the matter for prosecution, or finding good cause exists to not impose a fine or refer the matter for prosecution. Id.

         The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev. Code § 3517.153(B). At the full adjudicatory hearing, the parties may present evidence and make opening and closing statements. Ohio Admin. Code § 3517-1-11(B)(2)(c), (d), (g). Within 30 days of the close of all the evidence, the Commission must determine whether a violation has occurred and do one of the following: refer the matter to the appropriate prosecutor, impose a fine, or find good cause exists to not impose a fine or refer the matter for prosecution. Ohio Rev. Code § 3517.155(A)(1), (C); see also Ohio Admin. Code § 3517-1-14(C). If the Commission decides not to impose a fine or refer the matter to a prosecutor, the Commission may still issue a public reprimand. See Ohio Admin. Code § 3517-1-14(D). Any finding of a violation of Ohio Revised § 3517.21(A) must be "by clear and convincing evidence." Ohio Rev. Code § 3517.155(D)(1). Any non-expedited adjudicatory hearing shall be held within 90 business days of the complaint being filed, unless the Commission finds there is good cause to hold a hearing after that time, in which case it will be held within 180 business days. Ohio Rev. Code § 3517.155(A)(1). If after dismissing a complaint the Commission determines the complaint is frivolous, the Commission shall order the complainant to pay reasonable attorney's fees and costs. Ohio Rev. Code § 3517.155(E). A party adversely affected by a final determination by the Commission may appeal to state court under Ohio Revised Code § 119.12. Ohio Rev. Code § 3517.157(D).

         b. Project Veritas

         Plaintiff Project Veritas Action Fund ("PVA") is a non-profit organization that engages in undercover journalism to report to the public about corruption, fraud, waste, and abuse. (Amend. Compl., ECF No. 4 at ¶ 5.) PVA "is not a political organization, does not take stances on controversial political topics, does not endorse, support, or oppose candidates for election, and spends its time, energy, and resources engaged in newsgathering and reporting." (Id. at ¶ 7.) PVA reports on public servants and candidates for public office. (Id. at ¶ 8.) Plaintiff Project Veritas ("PV") is a 501(c)(3) tax-exempt public charity that "investigate[s] and expose[s] corruption, dishonesty, self-dealing, waste, fraud, and other misconduct in both public and private institutions" by launching investigations through placement of its undercover journalists "followed by a rollout of facts displaying corruption." (Id. at ¶¶ 9-13.) PV reports on candidates and campaigns, but does not engage in activities or speech that urge the election or defeat of any candidate. (Id. at ¶ 14.) Plaintiff James O'Keefe is the founder and President of both PV and PVA. (Id. at ¶ 15.)

         On October 1, 2018, a complaint was filed with the Commission by Ms. Lauren Windsor against PVA, James O'Keefe, and others. (Id. at ¶ 36.) Ms. Windsor's complaint alleged that PVA and the other named respondents violated Ohio Revised Code § 3517.21(A)(1) based on events that occurred during the 2016 election cycle. (Id. at ¶ 37) (citing Ex. B, ECF No. 1-1 at PAGEID#27-35.) That complaint alleged that PVA, led by Mr. O'Keefe, published a video that "feature[d] clips filmed surreptitiously by different operatives within the Grove City, OH coordinated campaign office of the Ohio Democratic Party for the Hillary Clinton and Ted Strickland campaigns, and within other locations." (Ex. B, ECF No. 1-1 at PAGEID#30.) Specifically, Ms. Windsor's complaint alleged that Mr. O'Keefe "placed at least two people in the election campaign organizations of two candidates for the purpose of reporting information to him, without the knowledge of the candidates." (Id. at PAGEID#31.) These two "operatives" allegedly infiltrated the coordinated campaign office of the Ohio Democratic Party for the Hillary Clinton and Ted Strickland campaigns as "volunteers" and recorded conversations with other campaign workers. (Id. at PAGEID#31-33.) According to Ms. Windsor's complaint, PVA, led by Mr. O'Keefe, then published a video in October 2016 that featured clips "filmed surreptitiously" by these two individuals. (Id.)

         The day after Ms. Windsor's complaint was received, the Commission scheduled a preliminary review to be held on November 15, 2018. (Id. at PAGEID#28.) The letter setting the preliminary review requested a written response, either notarized or made by counsel. (Id.) The letter stated that at the preliminary review, the Commission would review all timely filed documents submitted and could do any of the following: 1) find there was no violation; 2) find there was a violation; or 3) set the matter for a hearing at a later date if the Commission desired to receive further testimony. (Id.) The letter further stated that the respondents were welcome to attend and observe the preliminary review, but that it was within the Commission's discretion to allow any statements or presentation of evidence. (Id.) Plaintiffs attended the November 15, 2018 hearing through counsel. (Amend. Compl., ECF No. 4 at ¶ 41.) On January 8, 2019, the Commission dismissed the complaint as barred by the two-year statute of limitations, but declined to find the matter "frivolous." (Ex. C, ECF No. 1-1 at PAGEID#37.)

         Plaintiffs claim that since the Commission's dismissal of Ms. Windsor's complaint, they have refrained from engaging in further investigative reporting in Ohio in response to the risk of such litigation and sanctions. (Amend. Compl., ECF No. 4 at ¶ 43.) Plaintiffs claim that the State of Ohio is "the location of significant political campaign activity" and that they "anticipate significant ongoing campaign activity by state and federal campaigns and candidates beginning in the fall of 2019, leading up to the March 10, 2020 primary elections, and then through the November 3, 2020 general elections and beyond." (Id. at ¶ 44.) Plaintiffs contend that they still "plan[] to investigate, within Ohio, several candidates and election campaign organizations that are either headquartered in Ohio or will be active within Ohio from October 1, 2019 through November 1, 2020 and beyond." (Id. at ¶ 45.)

         Specifically, Plaintiffs "plan to investigate and report on instances of candidates for President of the United States, United States Congress, and the Ohio Statehouse publicly proclaiming positions that differ from their actual intentions on issues that are important to Ohioans[.]" (Id. at ¶ 46.) Plaintiffs "plan to accomplish the foregoing investigations by secretly investigating and recording, in public places, interactions of and between campaign staffers or candidates" and that they "plan to investigate, record, and report the foregoing in a manner substantially similar to the methods they used to investigate, record, and report on the Strickland campaigns in Ohio in 2016." (Id. at ¶¶ 47-48.) Plaintiffs claim that they will need to "alter or eliminate" these plans if Ohio Revised Code § 3517.21(A)(1) remains in effect because it "essentially criminalizes Project Veritas' proven and most effective practices." (Id. at ¶ 50.) They claim that but for this statute, they would undertake further investigative reporting. (Id. at ¶ 52.) But if that investigative reporting is pursued in Ohio, Plaintiffs claim their methods would subject them to civil and criminal liability because these methods "necessarily require the service of a Veritas reporter, during a political campaign, within the campaign of a candidate for public office for the purpose of reporting unapproved facts without that candidate or campaign's knowledge." (Id. at ¶ 51.)

         C. Procedural History

         Plaintiffs initiated this action by filing a Complaint on July 19, 2019, (ECF No. 1), and subsequently filed an Amended Complaint on July 22, 2019. (ECF No. 4). Defendants are members of the Commission, sued in their official capacities.[1] (Id. at ¶ 21.) Plaintiffs bring this action under 42 U.S.C. § 1983, claiming Ohio Revised Code § 3517.21(A)(1) violates their right to free speech under the First and Fourteenth Amendments of the United States Constitution and under Section 11, Article I of the Ohio Constitution and violates their right to due process under the First and Fourteenth Amendments of the United States Constitution and under Section 11, Article I of the Ohio Constitution. Plaintiffs request a declaration that Ohio Revised Code § 3517.21(A)(1) is "unconstitutional on its face, unconstitutional as applied by Defendants, and unconstitutional as applied to Plaintiffs, insofar as it prohibits those disconnected from political campaigns from engaging in otherwise-legally-compliant undercover investigation and reporting on political campaigns without the approval of those same campaigns." (ECF No. 4, PAGEID#67.)

         On July 22, 2019, Plaintiffs moved for a preliminary injunction based on their First Amendment claim, requesting Defendants be enjoined from enforcing Ohio Revised Code § 3517.21(A)(1) "against Plaintiffs and others similarly situated, insofar as that Division prohibits undercover investigation of and reporting on political campaign[s]." (ECF No. 5 at PAGEID#100.) Plaintiffs request the statute "be enjoined prior to the beginning of the 2020 elections in December of 2019." (ECF No. 23 at PAGEID#180.) Defendants oppose the motion. (ECF No. 14.) Oral argument was held on October 1, 2019, and the motion is now ripe for review.

         II. SCOPE OF THE CHALLENGE

         At the outset, it is necessary to determine whether Plaintiffs are challenging the statute on its face or as-applied. "A facial challenge to a law's constitutionality is an effort to invalidate the law in each of its applications, to take the law off the books completely." Speet v. Schuette, 726 F.3d 867, 871 (6th Cir. 2013) (internal quotation marks omitted). An as-applied challenge, however, "argues that a law is unconstitutional as enforced against the plaintiffs before the court." Speet, 726 F.3d at 872. "[T]he distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 331 (2010). "In fact, a claim can have characteristics of as-applied and facial challenges: it can challenge more than just the plaintiffs particular case without seeking to strike the law in all its applications." Green Party of Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015) (citing John Doe No. 1 v. Reed, 561 U.S. 186');">561 U.S. 186, 194 (2010)). The Supreme Court has said that it does not matter whether a challenge has been labeled as "facial" or "as-applied." John Doe No. 1, 561 U.S. at 194. Instead, the "important point" is whether Plaintiffs' "claim[s] and the relief that would follow... reach beyond the particular circumstances of these plaintiffs." Id. (citing United States v. Stevens, 559 U.S. 460, 472-473 (2010)). "In constitutional challenges reaching beyond the plaintiffs circumstances, the plaintiff must satisfy the 'standards for a facial challenge to the extent of that reach."' Green Party of Tenn., 791 F.3d at 692 (quoting John Doe No. 1, 561 U.S. at 194).

         Plaintiffs ask this Court to declare the statute "unconstitutional on its face, unconstitutional as applied by Defendants, and unconstitutional as applied to Plaintiffs, insofar as it prohibits those disconnected from political campaigns from engaging in otherwise-legally compliant undercover investigation and reporting on political campaigns without the approval of those same campaigns." (Amend. CompL, ECF No. 4 at PAGEID#67.) Their motion for a preliminary injunction requests Defendants be enjoined from enforcing the statute "against Plaintiffs and others similarly situated, insofar as that Division prohibits undercover investigation of and reporting on political campaign[s]." (ECF No. 5 at PAGEID#100; see also ECF No. 23 at PAGEID#208.)

         At oral argument, Plaintiffs argued that Defendants must be enjoined from relying on the statute to punish the gathering and reporting of information when: 1) the newsgatherer is not working for the opposing campaign; 2) the newsgatherer intends to or actually reports the information to the public rather than the opposing campaign; 3) the information reported to the public is truthful; 4) the information reported to the public is one of public affairs, public concern, or public importance; 5) no generally applicable tort law, contract law, or statute has been violated when acquiring or reporting information.

         The relief Plaintiffs seek, as set forth in their briefing and at oral argument, reaches beyond Plaintiffs' particular circumstances. Plaintiffs do not seek an injunction against enforcement of the statute against just them, and, notably, there is no pending enforcement of the statute against Plaintiffs before this Court. Instead, Plaintiffs request injunctive relief on behalf of Plaintiffs and "others similarly situated" who engage in undercover investigation and reporting on political campaigns. (ECF No. 5 at PAGEID#100; see also ECF No. 23 at PAGEID#208.) While Plaintiffs seek to narrow their facial challenge through the five factors articulated at oral argument, the challenge still extends beyond the particular circumstances of PV, PVA, and Mr. O'Keefe. Therefore, "Plaintiffs' claim is 'facial' in that it is not limited to Plaintiffs' particular case, but instead challenges application of the law more broadly" to those who engage in undercover investigation and reporting on political campaigns. See Platt v. Bd. of Comm'rs on Grievances, No. 1:13CV435, 2017 WL 1177576, at *5 (S.D. Ohio Mar. 30, 2017), aff'd sub nom. Platt v. Bd. of Comm 'rs on Grievances & Discipline of Ohio Supreme Court, 894 F.3d 235 (6th Cir. 2018).

         III. STANDING

         Though Defendants did not raise the issue of Plaintiffs' standing in their motion papers, they did so at oral argument. Article III standing is a threshold jurisdictional question mat must be addressed in every case. Miller v. City of Cincinnati, 622 F.3d 524, 531 (6th Cir. 2010). To establish Article III standing, a plaintiff must show: 1) an injury in fact; 2) a sufficient casual connected between the injury and the conduct complained of; and 3) a likelihood that the injury will be redressed by a favorable decision. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (citing Lagan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

         "An injury sufficient to satisfy Article III must be 'concrete and particularized' and 'actual or imminent, not conjectural or 'hypothetical.'" Id. (quoting Lujan, 504 U.S. at 560) (some internal quotations omitted). "An allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk' that the harm will occur." Id. (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 414 n.5 (2013)).

         When an individual is threatened with enforcement of a law, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. Id. at 158. The Supreme Court instead permits "pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent." Id. at 159. The Supreme Court has held "that a plaintiff satisfies the injury-in-fact requirement where he alleges 'an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.'" Id. (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)).

         In Susan B. Anthony List v. Driehaus, the Supreme Court held that the plaintiffs had alleged a credible threat of enforcement of Ohio's false statement statute amounting to an Article III injury in fact. 573 U.S. at 161.[2] First, the Supreme Court found that the plaintiffs had alleged intent to engage in a course of conduct affected with a constitutional interest because they pleaded specific statements they had made previously that they intended to make in future election cycles, and that this future conduct was political speech '"affected with a constitutional interest.'" Id. (quoting Babbitt, 442 U.S. at 298). The Supreme Court found that the plaintiffs' intended future conduct was arguably proscribed by the challenged statute because the statute had a broad sweep and covered the subject matter of the plaintiffs' intended speech. Id. at 162. Moreover, a Commission panel had already found probable cause to believe one of the plaintiffs had violated the statute by making the same sort of statements the plaintiffs intended to make in the future. Id. It did not matter that the plaintiffs did not allege intent to make statements that were knowingly false as required by the statute: "SBA's insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SB A had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this Court's decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law." Id. at 163. (citing Babbitt, 442 U.S. at 301).

         Finally, the Supreme Court found that the threat of future enforcement of the statute was substantial. Id. at 164. The court noted the history of past enforcement in the case before it because SBA was the subject of a complaint in a recent election cycle. Id. The court held that the threat was even more substantial because the Commission panel actually found probable cause to believe the SBA's speech violated the false statement statute, and that the credibility of the threat was "bolstered" because "any person" could file a complaint with the Commission, not just a state official. Id. The court found that Commission proceedings were not a rare occurrence, and that the combination of the threat of Commission proceedings and criminal prosecution were sufficient to create an Article III injury. Id. at 165-66.

         Here, Plaintiffs have alleged a sufficient injury in fact. Plaintiffs intend to engage in undercover investigation and reporting of campaigns in the 2020 election cycle "in a manner substantially similar to the methods they used to investigate, record, and report" on campaigns in Ohio in 2016. (Amend. Compl., ECF No. 4 at ¶¶ 47-48.) But Plaintiffs claim these methods "necessarily require the service of a Veritas reporter, during a political campaign, within the campaign of a candidate for public office for the purpose of reporting unapproved facts without that candidate or campaign's knowledge." (Id. at ¶ 51.) Plaintiffs' alleged investigation, recording, and reporting is "arguably affected with a constitutional interest" but proscribed by the statute. See Driehaus, 573 U.S. at 161.

         The threat of future enforcement is also credible. The same enforcement procedure analyzed in Driehaus applies to violations of Ohio Revised Code § 3517.21(A)(1) at issue here. As in Driehaus, Plaintiffs were the subject of a complaint filed in 2018 regarding their conduct in the 2016 election-conduct that they intend to repeat in 2020. Though the Commission did not find Plaintiffs violated the statute, they also did not find Plaintiffs' conduct permissible; instead, they dismissed the complaint based on the statute of limitations. Defendants claim the Commission "rarely receives a complaint alleging a violation" of the statute and that only nine complaints have been filed in the last thirty years, none of which have resulted in the Commission finding a violation. (ECF No. 14 at PAGEID#122.) Two complaints were filed in the fall of 2018, however, and one was against Plaintiffs. (ECF No. 23 at PAGEID#208.) Plaintiffs have alleged an injury in fact that is ripe for review. See Driehaus, 573 U.S. at 158, n.5 ("The doctrines of standing and ripeness originate from the same Article III limitation. As the parties acknowledge, the Article III standing and ripeness issues in this case boil down to the same question.") (internal citations omitted).

         IV. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 65 permits a party to seek injunctive relief when the party believes it will suffer immediate and irreparable injury, loss, or damage. Still, an "injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002).

         In determining whether to grant injunctive relief, this Court must weigh four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; (2) whether the moving party will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Id. (citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). These considerations are factors the Court must balance, not prerequisites that must be met. McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir. 1997). '"When a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.'" Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)). "With regard to the factor of irreparable injury, for example, it is well-settled that loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Id. (internal quotations omitted).

         V. ANALYSIS

         a. Likelihood of Success on the Merits

         The first factor the Court must consider in assessing Plaintiffs' request for a preliminary injunction is whether Plaintiffs have demonstrated a strong likelihood of success on the merits. In First Amendment cases such as this one, the likelihood of success is often determinative since the other factors necessarily depend ...


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