CINCINNATI (CN) – The Sixth Circuit heard arguments Tuesday in a case brought by liberal political commentators and conservative activists challenging the constitutionality of Ohio’s law against online harassment, claiming it criminalizes protected speech.
Columbus-based blog Plunderbund Media LLC, John Spinelli and the Portage County Tea Party teamed up and sued last year out of fear they could be criminally prosecuted if police or prosecutors think their politically charged web articles were posted with the purpose of abuse or harassment.
Their fear stems from a statute the Ohio General Assembly passed in 2016, which reads: “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.”
The plaintiffs clarified that they were challenging the language prohibiting “abusing” and “harassing,” not “threatening.”
U.S. District Judge Sara Lioi shot down their claims in February for lack of standing, calling their worries “too speculative” to establish a threat of imminent injury required for constitutional standing.
The ruling prompted an appeal to the Sixth Circuit, where attorney Eugene Volokh of UCLA’s Scott & Cyan Banister First Amendment Clinic represented the plaintiffs at Tuesday’s oral arguments.
The panel asked if his clients or anyone at all had been prosecuted for political speech under the changed statute since its implementation two years ago.
“We don’t know of any under this subsection for political speech… but if political speech were, again, a statutory exception, and if it were well enough defined, then perhaps that would give our clients assurances that they wouldn’t be prosecuted,” Volokh answered.
Principal Assistant Attorney General Steven Voigt argued on behalf of Ohio Attorney General Mike DeWine and prosecuting attorneys for Portage and Franklin counties.
He reiterated that there hadn’t been any political speech-related prosecutions under the statute yet and the state would not enforce the law against this type of speech.
The judges asked how the state clearly disavowed this contention.
“We disavowed it in our briefs,” Voigt said. “We have said clearly it does not reach political expression, and in fact, I would submit that if the court confirms that – that it cannot – that should further reassure plaintiffs that it would be improper if the law were to be applied in that manner.”
The panel was made up of U.S. Circuit Judge Jane Stranch and Senior U.S. Circuit Judges Gilbert Merritt Jr. and Martha Daughtrey.
Arguments lasted about 30 minutes. There is no timetable set for the Sixth Circuit’s decision.