PLAINTIFF SUSAN B. ANTHONY LISTS MOTION FOR A PRELIMINARY INJUNCTION, WITH MEMORANDUM IN SUPPORT
Plaintiff Susan B. Anthony List moves the Court, pursuant to Fed. R. Civ. P. 65, for a preliminary injunction against the enforcement of Ohio Revised Code 3517.21(B)(9)-(10) by the Ohio Elections Commission and its members in their official capacities. Because the statute chills core political speech and violates basic First Amendment principles, Plaintiffs challenge is likely to succeed. Plaintiff will also suffer irreparable injury absent prompt relief. The grounds for this motion are set forth in the accompanying memorandum. Michael A. Carvin* (D.C. Bar No. 366784) Yaakov M. Roth (D.C. Bar No. 995090) JONES DAY 51 Louisiana Avenue, N.W. Washington D.C. 20001 (202) 879-3939 macarvin@jonesday.com * admitted pro hac vice
Robert A. Destro (0024315) 2312 N. Powhatan Street Arlington, VA 22205-2116 (202) 905-6064 robertdestro@hotmail.com Respectfully submitted,
/s/ David R. Langdon David R. Langdon (0067046) Joshua B. Bolinger (0079594) LANGDON LAW LLC 8913 Cincinnati-Dayton Road West Chester, Ohio 45069 (513) 577-7380 dlangdon@langdonlaw.com
Counsel for Plaintiff Susan B. Anthony List Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 1 of 28 PAGEID #: 2390
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION
SUSAN B. ANTHONY LIST,
Plaintiff,
vs.
REP. STEVE DRIEHAUS, et al.,
Defendants.
: : : : : : : : :
Case No.: 1:10-cv-00720
Judge Timothy S. Black
ORAL ARGUMENT REQUESTED
MEMORANDUM IN SUPPORT OF PLAINTIFF SUSAN B. ANTHONY LISTS MOTION FOR A PRELIMINARY INJUNCTION
Michael A. Carvin* (D.C. Bar No. 366784) Yaakov M. Roth (D.C. Bar No. 995090) JONES DAY 51 Louisiana Avenue, N.W. Washington D.C. 20001 (202) 879-3939 (202) 626-1700 fax macarvin@jonesday.com
*admitted pro hac vice
David R. Langdon (0067046) LANGDON LAW LLC 8913 Cincinnati-Dayton Road West Chester, Ohio 45069 (513) 577-7380 (513) 577-7383 fax dlangdon@langdonlaw.com Robert A. Destro (0024315) 2312 N. Powhatan Street Arlington, VA 22205-2116 (202) 905-6064 robertdestro@hotmail.com
Counsel for Plaintiff Susan B. Anthony List Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 2 of 28 PAGEID #: 2391
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TABLE OF CONTENTS
Page TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION ......................................................................................................................... 1 STATUTORY AND FACTUAL BACKGROUND ..................................................................... 3 A. Ohios False-Statement Law Criminally Prohibits False Statements About Political Candidates .................................................................................... 3 B. The False-Statement Law Imposes Substantial Burdens on Speech and Is Often Abused for Political Purposes, as Ohios Attorney General Admits ........... 4 C. When SBA Criticized Rep. Driehaus Vote for the ACA, the OEC Found a Probable Violation of Ohios False-Statement Laws ............................................. 5 D. In Connection with the 2014 Elections, SBA Plans To Criticize Rep. Kapturs Vote for the ACA Using the Same Language ......................................... 6 ARGUMENT ................................................................................................................................. 7 I. OHIOS FALSE-STATEMENT LAW CHILLS CORE ELECTORAL SPEECH AND CREATES A MINISTRY OF TRUTH TO JUDGE POLITICAL DEBATE ............................................................................................................................ 8 A. Alvarez Invalidated a Law Proscribing Verifiable Lies, and Even the Dissent Agreed That the State Cannot Target False Speech of Public Concern .................................................................................................................. 8 B. Under the Reasoning of All Nine Justices in Alvarez, Ohios False- Statement Law Cannot Be Reconciled with the First Amendment ..................... 11 C. The Government Cannot Serve as the Arbiter of Political Truth Without Profoundly Burdening Free Expression, and Ohios False-Statement Regime Includes an Especially Noxious Enforcement Scheme .......................... 16 D. Indeed, This Court Has Already Recognized That, Under Alvarez, SBA Cannot Be Punished for Its Political Speech ....................................................... 18 II. THE OTHER PRELIMINARY INJUNCTION FACTORS ARE ALSO SATISFIED...................................................................................................................... 19 CONCLUSION ............................................................................................................................ 20
TABLE OF AUTHORITIES Page(s) CASES Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) .................................................................................................................18 Brown v. Entmt Merchants Assn, 131 S. Ct. 2729 (2011) .............................................................................................................12 Brown v. Hartlage, 456 U.S. 45 (1982) ...................................................................................................................14 Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) .................................................................................................................17 Citizens United v. FEC, 558 U.S. 310 (2010) .................................................................................................................15 City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750 (1988) ...........................................................................................................17, 18 Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................19, 20 Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995) ...................................................................................................20 Deja Vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377 (6th Cir. 2001) ...................................................................................................20 Dombrowski v. Pfister, 380 U.S. 479 (1965) .................................................................................................................20 Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................................19 FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) .................................................................................................................15 G & V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071 (6th Cir. 1994) ...................................................................................................20 McIntyre v. Ohio Elections Commn, 514 U.S. 334 (1995) .................................................................................................................12 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) .............................................................................................................8, 13 Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 4 of 28 PAGEID #: 2393
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Murdock v. Pennsylvania, 319 U.S. 105 (1943) .................................................................................................................18 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................................................................................2, 19 Overstreet v. Lexington-Fayette Urban Cnty. Govt, 305 F.3d 566 (6th Cir. 2002) ...................................................................................................19 Riley v. Natl Fedn of the Blind of N.C., Inc., 487 U.S. 781 (1988) .................................................................................................................16 Speiser v. Randall, 357 U.S. 513 (1958) .................................................................................................................16 Susan B. Anthony List v. Driehaus, 573 U.S. __ (June 16, 2014) ............................................................................................ passim United States v. Alvarez, 132 S. Ct. 2537 (2012) ..................................................................................................... passim United States v. Playboy Entmt Grp., Inc., 529 U.S. 803 (2000) .................................................................................................................13 Virginia v. Hicks, 539 U.S. 113 (2003) .................................................................................................................20 Whitney v. California, 274 U.S. 357 (1927) .................................................................................................................12 Williams v. Rhodes, 393 U.S. 23 (1968) ...................................................................................................................12 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) .......................................................................................................................7 STATUTES 18 U.S.C. 704 ................................................................................................................................8 Ohio Rev. Code 3517.21 .........................................................................................................3, 20 Ohio Rev. Code 3517.153 .............................................................................................................3 Ohio Rev. Code 3517.154 .............................................................................................................3 Ohio Rev. Code 3517.155 .............................................................................................................3 Ohio Rev. Code 3517.156 .............................................................................................................3 Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 5 of 28 PAGEID #: 2394
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Ohio Rev. Code 3517.992 .............................................................................................................4 Ohio Rev. Code 3599.39 ...............................................................................................................4 Ohio Rev. Code 3599.40 ...............................................................................................................4 OTHER AUTHORITIES Ray Crumbley, Hearing Set on Complaint That School Levy Foes Violated Law, COLUMBUS DISPATCH, May 16, 1992, 1992 WLNR 4914401 ................................................14 Election Complaint Filed, CLEVELAND PLAIN DEALER, Nov. 12, 1997, 1997 WLNR 6374883....................................................................................................................................15 Ohio Elections Commission: History, available at http://elc.ohio.gov/History.stm .......................5 State Elections Panel Chides Latta Campaign, THE BLADE, Nov. 6, 2007, 2007 WLNR 21915569..................................................................................................................................15 State Hears Schmidt Genocide Case, CINCINNATI ENQUIRER, Aug. 14, 2009, 2009 WLNR 16019649..................................................................................................................................14 Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 6 of 28 PAGEID #: 2395
1 INTRODUCTION During oral argument at the Supreme Court in United States v. Alvarez, Justice Kagan asked the U.S. Solicitor General about the constitutionality of these State statutesthere are more of them than I thought that there would bethat say no demonstrable falsehoods by a political candidate in a political race. The Solicitor General confessed that such statutes are going to have a lot harder time getting through the Courts breathing space analysis because the context in which they arise is one that would create a more significant risk of chill. He sought to distinguish from such statutes the federal law there at issue, which proscribed falsely claiming to have received military medals, as involving only verifiable factual falsehoods outside the political process. Tr. of Oral Argument at 18-19, Alvarez, 132 S. Ct. 2537 (2012) (No. 11-210). Despite throwing statutes like Ohios overboard, the Solicitor General lost Alvarez; the Supreme Court invalidated the federal Stolen Valor Act. The same result follows a fortiori here. In every respect, Ohios false-statement law is more offensive to the First Amendment than the law in Alvarez. In terms of context, the Ohio statute governs political speech in the middle of election campaignsthe irreducible core of protected speech. In terms of scope, Ohios law forbids not only objectively verifiable lies about specific, personal facts, but also (as in this case) hotly contested and contestable political spin, like the interpretation of a complex piece of legislation. And in terms of effect, Ohios regime imposes huge burdens on truthful speakers, as their political opponents can compel them to spend time and money, during the most critical days of the election, defending their speech before a panel of bureaucrats who can subject them to burdensome discovery and even brand them as liars in the publics mind. It is hard to imagine a regime more at war with the First Amendment. As even the dissent in Alvarez recognized and, indeed, as this Court already recognized in dismissing Driehauss defamation claimthe State cannot just appoint itself as the arbiter of political truth (Dkt. No. 108, at 3). Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 7 of 28 PAGEID #: 2396
2 On June 16th, the Supreme Court held that Plaintiff Susan B. Anthony List (SBA) may proceed with its First Amendment challenge to Ohios false-statement law. Susan B. Anthony List v. Driehaus, 573 U.S. __ (June 16, 2014) (No. 13-193) (SBA). Although the speech that initially sparked this suit concerned the 2010 elections, SBA plans to keep criticizing Members of Congress for supporting the Affordable Care Act (ACA) and its taxpayer-funded abortion. Because the Ohio Elections Commission (OEC) has concluded that so describing the ACA is probably a crime, however, SBA faces a credible threat of triggering enforcement proceedings and suffering real burdens if it does so. For that reason, not only is SBAs challenge ripe, but SBA is entitled to a preliminary injunction. Congressional elections are less than five months away, and SBA wants to speak during that campaign about Rep. Marcy Kaptur, who also voted for the ACA despite purported pro-life values. An injunction is necessary to allow SBA to engage in this campaign free from the obvious speech burdens imposed by the Ohio law. All of the requirements for a preliminary injunction are satisfied. Alvarez makes plain that SBA is certain to succeed on the merits. None of the three opinions in that case would allow state bureaucrats to act as supreme fact checkers for every political campaign in the state. The remedy for false speech is truthful speech, not state suppression, and erroneous statement must be protected if the freedoms of expression are to have the breathing space that they need to survive. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964) (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). This deprivation of constitutional freedoms also constitutes irreparable injury per se, and the enforcement of an unconstitutional regime serves neither equity nor the public interest. This Court should therefore enjoin Ohios false-statement law, and so ensure continued respect for our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. Id. at 270. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 8 of 28 PAGEID #: 2397
3 STATUTORY AND FACTUAL BACKGROUND This case presents a constitutional challenge to Ohio Revised Code 3517.21(B)(9)-(10), which proscribes certain false statements about political candidates. SBA faces enforcement proceedings under that statute, because it intends to repeat political criticism that the OEC previously found gave rise to probable cause to believe that SBA violated the law. A. Ohios False-Statement Law Criminally Prohibits False Statements About Political Candidates. In Ohio, it is a crime to [p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate. Ohio Rev. Code 3517.21(B)(10). Even if one does not knowingly or recklessly disregard the falsity of the statement, it is a crime to [m]ake a false statement concerning the voting record of a candidate or public official. Id. 3517.21(B)(9). These provisions are together referred to in this memorandum as Ohios false-statement law. Procedurally, any person may file a complaint alleging a violation of this law with the OEC. Id. 3517.153(A). The OEC can issue enforceable subpoenas compelling the attendance of witnesses and the production of relevant papers. Id. 3517.153(B). If a complaint alleging a false statement is filed within 60 days of a primary election or 90 days of a general election, the OEC must hold an expedited hearing, id. 3517.154(A), at which a three-member panel of the OECs political appointees decides if [t]here is probable cause to believe that the failure to comply with or the violation of a law alleged in the complaint has occurred, id. 3517.156(A), (C). If so, the panel must refer the case to the full Commission, id. 3517.156(C)(2), and if the Commission then finds a violation, it shall refer the matter to the appropriate prosecutor. Id. 3517.155(D)(2). See generally SBA, slip op. at 2-3 (describing statutory regime). Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 9 of 28 PAGEID #: 2398
4 Violation of Ohios false-statement law is a first-degree misdemeanor. Id. 3599.40. Whoever violates section 3517.21 shall be imprisoned for not more than six months or fined not more than five thousand dollars, or both. Id. 3517.992(V). And an individual who is twice convicted of violating the elections code shall be disfranchised. Id. 3599.39. B. The False-Statement Law Imposes Substantial Burdens on Speech and Is Often Abused for Political Purposes, as Ohios Attorney General Admits. Ohios regime allows anyone to trigger burdensome proceedings against a speaker, thus imposing costly entry barriers to the political marketplace of ideas. It is no surprise that the speech suppressing regime has been exploited to silence opponents, with campaigns strategically deploying OEC complaints to burden and distract their electoral rivals. Indeed, when this case was before the Supreme Court, Ohios Attorney General filed an amicus curiae brief to highlight how the regime allows campaigns to engage the States legal and administrative processes in order to gain a campaign advantage in close elections. Amicus Br. of Ohio Atty. Gen. at 7, SBA, 573 U.S. ___ (2014) (No. 13-193) (AG Brief), http://www.americanbar.org/content/dam/aba/ publications/supreme_court_preview/briefs-v3/13-193_np_amcu_oag.authcheckdam.pdf. Merely filing an OEC complaintwhich anyone may doitself imposes serious burdens on the target. Whenever a complaint is filed, a probable-cause hearing must be held; there is no system for weeding out frivolous complaints. Id. at 6. The speaker is forced to use time and resources responding to the complaint, typically at the exact moment that the campaign is peaking and his time and resources are best used elsewhere. Id. at 15. Moreover, once the panel finds probable causea very low hurdlediscovery is allowed, allowing political opponents to delve into confidential communications. Id. at 5. On top of that, the probable- cause finding is perceived by a substantial part of the electorate as the definitive pronouncement of the State of Ohio as to a candidates or other speakers truthfulness and thus triggers Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 10 of 28 PAGEID #: 2399
5 profound political damage, even before any final OEC (much less judicial) adjudication has occurred. Id. at 6. Complaints to the OEC can thus easily be manipulated so that the costs they impose on a political opponent form part of the complainants campaign strategy. Id. at 5. Indeed, the OEC itself concedes that campaigns use the Commission as a part of their activities. Ohio Elections Commission: History, http://elc.ohio.gov/History.stm. The abusive manipulation of the OEC regime is further evidenced by the fact that most complaints are filed just days before an election, so that the target will have no opportunity for judicial review before the election. See AG Brief at 16. And the complainants then routinely move to dismiss the complaints after the election is over, having already inflicted the damage of time and cost to the opposition of having to defend itself in the campaigns final days. Id. at 21. The OEC regularly grants these motions, see id. at 20, thus perpetuating the continued abuse and political gamesmanship that the false-statement regime allows. In short, as the Supreme Court (quoting the Attorney General) aptly put it, the practical effect of the Ohio false statement scheme is to permit a private complainant to gain a campaign advantage without ever having to prove the falsity of a statement. SBA, slip op. at 15. C. When SBA Criticized Rep. Driehaus Vote for the ACA, the OEC Found a Probable Violation of Ohios False-Statement Laws. In 2010, SBA criticized certain Members of Congressincluding Reps. Steve Driehaus and Marcy Kaptur of Ohiowho voted for the ACA. Among other things, SBA planned to erect large billboards stating: Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion. (Dkt. No. 25-3, at 10.) After SBAs billboards were reported in the news, Driehaus filed a complaint with the OEC, alleging that SBA violated the Ohio false-statement law. (Dkt. No. 25-3, at 2.) Driehauss complaint centered on his claim that the ACA does not specifically appropriate federal funds for abortions, and that SBAs speech was therefore false. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 11 of 28 PAGEID #: 2400
6 As a result of Driehaus complaint, SBA was forced to divert its time and resourcesin close proximity to the electionto hire legal counsel to defend itself before the OEC. (Decl. of Emily Buchanan, Exh. A, 6.) The OEC held an expedited hearing and voted, 2-1, to find probable cause that SBA had committed the crime. (Dkt. No. 25-5, at 30.) Driehaus then pursued voluminous discovery requests to SBA and third parties. (Dkt. Nos. 25-6 & 25-7.) He noticed depositions of three SBA officials and subpoenaed officials of allied organizations. (Id.) Driehaus also sought stunningly broad production of documentsincluding communications with political party committees and even Members of Congress and their staff. (See id.) Ultimately, after SBA filed this First Amendment suit seeking to restrain enforcement of the false-statement law, Driehaus lost reelection and moved to withdraw his OEC complaint. Although the Sixth Circuit found SBAs constitutional challenge to be unripe, the Supreme Court unanimously disagreed, and ordered the case remanded. See SBA, slip op. at 1, 18. 1
D. In Connection with the 2014 Elections, SBA Plans To Criticize Rep. Kapturs Vote for the ACA Using the Same Language. As the Supreme Court held, SBAs constitutional claim remains live, because SBA wants to repeat its criticism of Rep. Driehaus about other Ohio candidates, but obviously fears that doing so will again subject it to enforcement proceedings under the false-statement regime. SBA, slip op. at 11-12. In particular, SBA wants to post a billboard concerning Rep. Marcy Kaptur, who is seeking reelection in 2014, stating: Shame on Marcy Kaptur! Kaptur voted FOR taxpayer-funded abortion. (Decl. of Emily Buchanan, Exh. A, 7.) But, because of the OECs finding about the same speech regarding Driehaus in 2010, engaging in that speech will cause SBA to suffer substantial financial, political, and reputational harms, not to mention potential criminal penaltiesand SBA therefore will not do so absent judicial relief. (Id., 8.)
1 Driehaus also filed a defamation counterclaim, which this Court dismissed because associating a political candidate with a mainstream policy view is not defamatory under Ohio law. (Dkt. No. 108.) Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 12 of 28 PAGEID #: 2401
7 ARGUMENT The Supreme Court has now confirmed that SBAs facial First Amendment challenge to Ohios false-statement law is ripe for review. SBA, slip op. at 7 n.5, 11. Indeed, congressional elections are less than five months away, and SBA wants to repeat, about Rep. Marcy Kaptur, the same criticisms that it leveled against Rep. Steve Driehaus in 2010. But, as the Supreme Court held, SBA credibly fears enforcement if it proceeds with those plans, given that the OEC has previously found its speech probably criminal. Id. at 11-17. SBA thus seeks a preliminary injunction, so that it can fully participate in the upcoming elections. To obtain a preliminary injunction, a plaintiff must show that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). That standard is plainly satisfied here. Ohios false-statement laws are manifestly unconstitutional. In United States v. Alvarez, 132 S. Ct. 2537 (2012), the Supreme Court held that even a prohibition on objectively verifiable lies outside the political context violated the First Amendment. All the more so here, where Ohio proscribes core political speech during election campaigns and readily allows campaigns to severely burden (and thus chill) even true speech of their electoral opponents. Ohios political Ministry of Truth cannot come close to satisfying any level of constitutional scrutiny, in light of the fundamental First Amendment principle that the remedy for false speech is true speech not administrative hearings or criminal penalties. In addition, the burdens that Ohios regime imposes on SBAburdens the Supreme Court has already recognized (SBA, slip op. at 15) constitute irreparable injury per se under Sixth Circuit precedent. And the balance of equities and public interest counsel strongly in favor of injunctive relief, so that Ohios unconstitutional regime does not once again inhibit robust political discourse during the upcoming campaigns. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 13 of 28 PAGEID #: 2402
8 I. OHIOS FALSE-STATEMENT LAW CHILLS CORE ELECTORAL SPEECH AND CREATES A MINISTRY OF TRUTH TO JUDGE POLITICAL DEBATE. The Supreme Courts most recent decision considering the constitutionality of bans on false speech, United States v. Alvarez, is controlling and dispositive here. The law in Alvarez merely proscribed a person from making undeniably false and valueless claims that he won military medals. In stark contrast, Ohios law prohibits false political speech on hotly debated issues of public importance in the middle of an election campaign, when, as the Supreme Court emphasized in this case, the First Amendment has its fullest and most urgent application, SBA, slip op. at 12 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). Thus, there is no way that this law can remotely pass muster, when the far-more-defensible law in Alvarez could not. Indeed, this Court already effectively recognized as much, when it cited Alvarez in dismissing Driehauss defamation claim against SBA. As this Court reasoned: The law steers far clear of requiring judicial determination of political truth, and does so because of the serious dangers to democracy and the political process that would result from turning the courts into truth squads with respect to core political speech on matters of public concern. (Order, Dkt. 108, at 5.) For the same reason, Ohios false-statement law violates the First Amendment. A. Alvarez Invalidated a Law Proscribing Verifiable Lies, and Even the Dissent Agreed That the State Cannot Target False Speech of Public Concern. Alvarez considered the Stolen Valor Act, which prohibited falsely claiming to have been awarded military medals. See 18 U.S.C. 704. Mr. Alvarez spoke an intended, undoubted lie when he claimed to have earned a Congressional Medal of Honor. 132 S. Ct. at 2542 (plurality). 1. Writing for four Justices, Justice Kennedy rejected the notion that false speech is unprotected by the First Amendment. There is no exception to the First Amendment for false statements. Id. at 2544. To the contrary, false statements are inevitable if there is to be an open and vigorous expression of views, which the First Amendment seeks to guarantee. Id. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 14 of 28 PAGEID #: 2403
9 The plurality opinion then explained, in broad strokes, why the Stolen Valor Act was incompatible in a fundamental way with principles of free speech: Permitting the government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceanias Ministry of Truth. Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. [That] would give government a broad censorial power unprecedented in this Courts cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. Id. at 2547-48 (citation omitted). That analysis, held the plurality, suffices to show that the Act conflicts with free speech principles. Id. at 2548. Turning next to application of the Courts traditional exacting scrutiny for content- based speech restrictions, Justice Kennedy identified several fatal defects in the Governments defense of the Stolen Valor Act, two of which are apposite here. First, the Government had not shown a direct causal link between the Governments interest in protecting the integrity of the military honors system and the Acts restriction on the false claims of liars. Id. at 2549. The Government had point[ed] to no evidence to support its claim that the publics general perception of military awards is diluted by false claims such as those made by Alvarez. Id. Second, [t]he Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. Id. The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straightout lie, the simple truth. [S]uppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates. Id. at 2550. There was thus no clear showing of the necessity of the statute. Id. at 2551. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 15 of 28 PAGEID #: 2404
10 2. Justice Breyer, joined by Justice Kagan, agreed that the Stolen Valor Act could not be reconciled with the First Amendment. See id. (Breyer, J., concurring in the judgment). He recognized that the Act concern[ed] false statements about easily verifiable facts, rather than false statements about philosophy, religion, history, the social sciences, the arts, and the like, and therefore presented far lower dangers of suppressing valuable ideas. Id. at 2552. Accordingly, he invoked an intermediate-scrutiny balancing test, rather than strict categorical analysis. Id. at 2551-52. Nonetheless, applying that test, the concurrence observed that the statute ranges very broadly and could allow censorious selectivity by prosecutors. Id. at 2555. Moreover, in this area more accurate information will normally counteract the lie. Id. at 2556. Justice Breyer thus concluded that the statute as presently drafted works disproportionate constitutional harm and consequently fails intermediate scrutiny. Id. 3. Justice Alito, joined by Justices Scalia and Thomas, dissented. He recognized that the First Amendment protects false speech where necessary in order to prevent the chilling of truthful speech on matters of public concern. Id. at 2563 (Alito, J., dissenting). Thus, there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Id. at 2564. Laws restricting false statements about matters of public concern would present such a threat, and it would thus be perilous to permit the state to be the arbiter of truth in that area. Id. Further, [a]llowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends, creating a potential for abuse of power simply too great for the First Amendment to permit. Id. The Stolen Valor Act, however, stood in stark contrast to such laws. Id. Among other things, the statute applied to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 16 of 28 PAGEID #: 2405
11 certainty and fall squarely within the speakers personal knowledge. Id. at 2557. Moreover, [t]he false statements proscribed by the Act are highly unlikely to be tied to any particular political or ideological message. Id. For those reasons, the dissent concluded that the Act present[ed] no risk at all that valuable speech will be suppressed or chilled. Id. at 2564. B. Under the Reasoning of All Nine Justices in Alvarez, Ohios False-Statement Law Cannot Be Reconciled with the First Amendment. The unconstitutionality of Ohios false-statement law follows a fortiori from Alvarez. As just noted, six Justices voted to invalidate the Stolen Valor Act, even though it proscribed only indisputable lies about objectively verifiable facts concerning the speaker himself, outside the political context. And the dissent would have upheld it only because of those characteristics, while making clear that laws proscribing false statements about matters of public concern were plainly distinguishable and constitutionally defective. Because Ohios false-statement law (i) broadly criminalizes falsity in the electoral context, when speech is most valuable; (ii) extends to claims that are not objectively verifiable personal facts, but fairly debatable positions on matters of public concern, as this case illustrates so well; and (iii) for those reasons as well as others, would substantially chill core political speech and require the State to serve as the arbiter of political truth, it fails under the Alvarez plurality, concurrence, and dissent alike. 1. Under Justice Kennedys plurality, Ohios law is subject to exacting scrutiny, as itlike the Stolen Valor Actproscribes speech outside those few categories where the law allows content-based regulation of speech. 132 S. Ct. at 2544 (plurality). And also like the Stolen Valor Act, Ohios false-statement law doubly fails that test. First, the State has no evidence that its false-statement regime actually protects the integrity of Ohio elections. Id. at 2549. Ohio cannot show that its voters are better informed than they were prior to the false- statement regime, or than voters in states that do not criminalize such false statements. See Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 17 of 28 PAGEID #: 2406
12 Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738-39 (2011) (state must show a direct causal link between proscribed speech and alleged harm). Cf. Williams v. Rhodes, 393 U.S. 23, 47 (1968) (Harlan, J., concurring) (As both Ohios electoral history and the actions taken by the overwhelming majority of other States suggest, opening the ballot to this extent is perfectly consistent with the effective functioning of the electoral process.). Second, even more obviously, there is no reason why counterspeech would not suffice to achieve [Ohios] interest. Alvarez, 132 S. Ct. at 2549 (plurality). The ordinary course in a free society is to remedy false speech using true speechnot through suppression of speech. Id. at 2550. This free-debate remedy is most needed (and effective) in political campaigns, where the truth is always determined by charges and counter-charges by the opposing campaigns, and where victims like Driehaus (and his allies) have ample means and opportunity to correct the false charges. Thus, in this country, political attacks have always been resolved in the marketplace of ideas, McIntyre v. Ohio Elections Commn, 514 U.S. 334, 341 (1995), not by the State. Accord Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring) (If there be time to expose through discussion the falsehood and fallacies, the remedy to be applied is more speech, not enforced silence.). Political candidates are more than able to refute false claims through their public communications. And journalists help correct any falsehoods, by doing their own fact-checking. Indeed, websites like PolitiFact.com and the Washington Posts Fact Checker have pioneered an entire industry of quick analysis of statements by or about candidates. The notion that there is nonetheless a true necessity, Alvarez, 132 S. Ct. at 2551, for political fact-checking by state bureaucrats brandishing criminal penalties defies reality. In short, the States only interest here is paternalistically shielding the electoral process from false statements that uninformed citizens, unlike the enlightened OEC, are purportedly Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 18 of 28 PAGEID #: 2407
13 unable to evaluate. But, especially on matters of politics, the Constitution says that these judgments are for the individual to make, not for the Government to decree. United States v. Playboy Entmt Grp., Inc., 529 U.S. 803, 818 (2000). To uphold Ohios law would thus, as the Alvarez plurality feared, endorse government authority to compile a list of subjects about which false statements are punishable. 132 S. Ct. at 2547. The OEC is precisely the Ministry of Truth against which [o]ur constitutional tradition stands. Id. As Justice Kennedy warned, that power has no clear limiting principle, casting a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. Id. at 2547-48. 2. The reasoning of Justice Breyers Alvarez concurrence would similarly condemn Ohios law. At the threshold, Justice Breyer would apply strict scrutiny here. In Alvarez, he applied only intermediate scrutiny because the Stolen Valor Act forbade easily verifiable lies that do not implicate valuable ideas. Id. at 2552 (Breyer, J., concurring in judgment). But he conceded that [l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns [about suppressing truthful speech], and in many contexts have called for strict scrutiny. Id. As this case shows, Ohios false-statement law extends well beyond readily verifiable facts like whether Alvarez was awarded the Medal of Honor, burdening not just undoubted lie[s], id. at 2542 (plurality), but even eminently rational interpretations of complex statutes (like the ACA). Moreover, the lies prohibited by Ohios law arise in campaigns for political office, where the First Amendment has its fullest and most urgent application. Monitor Patriot, 401 U.S. at 272. Justice Breyer would thus subject Ohios law to even more demanding scrutiny than the Stolen Valor Act (which he invalidated). But even under intermediate scrutiny, Ohios law would fail. It ranges very broadly, requiring no proof that anyone was fooled or affected in any way by the supposed falsity, let Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 19 of 28 PAGEID #: 2408
14 alone that a candidate actually lost an election as a result. Alvarez, 132 S. Ct. at 2554-55 (Breyer, J., concurring in judgment). It also applies in political contexts, where there exists a high risk of censorious selectivity by state-deputized complainants. Id. at 2555. And it extends to any false statement concerning a candidate, not just certain narrow, verifiable claims that are defamatory or likely to cause harm. On the other hand, there is virtually no need for the law, because more accurate information will normally counteract the lie. Id. at 2556. 3. Finally, Ohios law fails even under the Alvarez dissent. The dissent reasoned that the Stolen Valor Act present[ed] no risk at all that valuable speech will be suppressed, because it applied only to lies without any political or ideological message, about objective facts that can almost always be proved or disproved with near certainty and fall squarely within the speakers personal knowledge. Id. at 2557, 2564. As such, speakers engaged in political or public-policy speech would have no reason to fear prosecution. The dissent recognized, however, that a law restricting false statements about matters of public concern would present a grave and unacceptable danger of suppressing truthful speech. Id. at 2564. Ohios false-statement law is precisely such a statute. It concerns the most quintessential matters of public concern: who should be elected to govern. Brown v. Hartlage, 456 U.S. 45, 53 (1982) (describing political campaigns as the heart of American constitutional democracy). And it is not limited to verifiable hard facts. The OEC has been asked to determine the falsity of everything from whether donations from a Turkish PAC were blood money given the Armenian genocide, State Hears Schmidt Genocide Case, CINCINNATI ENQUIRER, Aug. 14, 2009, 2009 WLNR 16019649, to whether a school board turned control of the district over to the union, Ray Crumbley, Hearing Set on Complaint That School Levy Foes Violated Law, COLUMBUS DISPATCH, May 16, 1992, 1992 WLNR 4914401, to whether a city Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 20 of 28 PAGEID #: 2409
15 councilor had a habit of telling voters one thing, then doing another, Election Complaint Filed, CLEVELAND PLAIN DEALER, Nov. 12, 1997, 1997 WLNR 6374883, to whether a senator had supported higher taxes by voting to put a proposed tax increase on the ballot, State Elections Panel Chides Latta Campaign, THE BLADE, Nov. 6, 2007, 2007 WLNR 21915569. And, in this very case, the OEC purported to determine the falsity of SBAs interpretation of the most consequential, complex, and hot-button federal legislation of modern times. Moreover, Ohios law contains numerous other features that exacerbate its chilling effect. Anyone can file a complaint, automatically triggering burdensome Commission proceedings, SBA, slip op. at 16, even if the speaker told only the truth. The target may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. Id. at 15-16. See FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 468 n.5 (2007) ([L]itigation constitutes a severe burden on political speech.); Citizens United v. FEC, 558 U.S. 310, 366 (2010) ([D]isclosure requirements may burden the ability to speak .). And if the OEC finds probable cause, the speaker may suffer profound political harm. SBA, slip op. at 16. Unlike the Stolen Valor Act, Ohios false-statement law is thus certain to chill a substantial quantity of valuable political speech during electoral campaigns. * * * In short, Alvarez was a hard case because the Stolen Valor Act forbade only valueless, clearly objectively verifiable lies, and did not chill any truthful speech. Even still, six Justices voted to invalidate it. This case, by contrast, is easy. Ohios false-statement law criminalizes core political speech and, as the States own Attorney General concedes, it chills truthful, valuable contributions to the marketplace of ideas. Under Alvarez, Ohios law cannot survive. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 21 of 28 PAGEID #: 2410
16 C. The Government Cannot Serve as the Arbiter of Political Truth Without Profoundly Burdening Free Expression, and Ohios False-Statement Regime Includes an Especially Noxious Enforcement Scheme. As all three Alvarez opinions agree, the critical objection to proscribing false speech is not that false speech is valuable, but that the process of allowing the State to serve as arbiter of truth is intrinsically hazardous to free expression. For one thing, forcing a speaker to defend the truth of his speech costs time and money. Riley v. Natl Fedn of the Blind of N.C., Inc., 487 U.S. 781, 794 (1988) (forcing speaker to bear the costs of litigation will chill speech). For another, the State may err about the truth of a statement, especially where the truth is unclear or debatable. Speiser v. Randall, 357 U.S. 513, 526 (1958) ([T]he possibility of mistaken factfinding will create the danger that the legitimate utterance will be penalized.). In light of those burdens and risks, speakers engaging in truthful speech will be chilled. The basic problem with mandating truth is thus that a Ministry of Truth must inevitably enforce that mandate. Those burdens were at their lowest ebb in Alvarez, because the Stolen Valor Act forbade only precisely targeted, valueless falsehoods and created no remotely cognizable disincentive to engage in other, potentially valuable speech. Because the proscribed falsehood was narrow and discrete; because a speaker would inherently know whether an assertion concerning his receipt of a medal was false; and because adjudicating the falsity of that single, personal assertion would not be subject to any reasonable dispute, nothing in the Stolen Valor Act could plausibly chill arguably true speech. Nonetheless, the Court invalidated it, unwilling to allow the government to take even this first, minimal step into mandating (and so defining) truth. By contrast, Ohios regime is the most toxic imaginable for free expression. Every facet of its design and enforcement amplifies the risks of partisan abuse and chilling truthful speech. As the Supreme Court noted, Ohios law subjects the most valuable First Amendment speech that concerning campaigns for political officeto a system that enables the speakers rivals Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 22 of 28 PAGEID #: 2411
17 to gain a campaign advantage without ever having to prove the falsity of a statement. SBA, slip op. at 12, 15. Thus, the Supreme Court has already concluded that Ohios speech- suppressing scheme subjects core political speech to potentially selective burdens even if the speech is not proved false. It is thus plainly unconstitutional under Alvarez, which prohibits burdening non-political speech even if it is obviously and knowingly false. Specifically, Ohios regime is fatally defective for a number of reasons. First, it extends to all speech by all speakers. While candidates themselves may be equipped (with money and attorneys) to manage the vagaries of the OEC process, independent speakers (like SBA) or small media outlets (like bloggers) are not. Cf. City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750, 758 (1988) (A newspaper espousing an unpopular viewpoint on a shoestring budget may be the likely target , but may not have the time or financial means to challenge the regulator). Second, Ohios law deputizes everyonenot just state officials who are constrained by explicit guidelines or ethical obligations (SBA, slip op. at 14)to sic the OEC on their political opponents (id.) in the midst of a contested campaign, imposing severe burdens and costs. As the Supreme Court noted, the Commission has no system for weeding out frivolous complaints (id.) or otherwise shielding the speaker from a costly, distracting probable-cause hearing. The target must hire counsel and devote time, money, and attention to defending itself to the OEC rather than to the electorate. If probable cause is found, the complainant may engage in intrusive discovery into confidential campaign materials. And the OEC can issue such a public probable cause finding in just days, without any chance for judicial review before the public is induced to believe that the State has officially declared one candidate (or his supporters) to be lying. The Supreme Court has invalidated even very minor burdens on protected speech, like disclosure rules, Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 200 (1999), and license fees, Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 23 of 28 PAGEID #: 2412
18 Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943). Here, the burdens that Commission proceedings can impose on electoral speech are of particular concern. SBA, slip op. at 15. Just as the State could not charge speakers one dollar to participate in public debate, it cannot impose on them the far higher costs associated with the OEC regimemuch less allow partisan actors, in their sole discretion, to impose such costs on their opponents. Cf. City of Lakewood, 486 U.S. at 763 (danger of censorship at its zenith when burdens imposed with unbridled discretion). Third, as if all of that were not bad enough, the burdensome Commission proceedings are, as the Supreme Court emphasized, severely exacerbated by the additional threat of criminal prosecution. SBA, slip op. at 16. The government may violate [the First Amendment] in many ways, but a law imposing criminal penalties on protected speech is a stark example of speech suppression. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002). For all of these reasons, the Ohio regime manifests all of the Orwellian dangers created by having the State determine which campaign speech the electorate should hear. D. Indeed, This Court Has Already Recognized That, Under Alvarez, SBA Cannot Be Punished for Its Political Speech. In truth, this Court has already recognized Alvarezs significance for this case. Granting summary judgment to SBA on Driehauss defamation claim, this Court quoted Alvarez at length in the course of explaining why SBA could not be held liable for its allegedly false statements: The concomitant principles of free speech and truth collide most violently in the arena of political speech. During the recently passed national elections, citizens were bombarded with political advertisements that the targets of which daily denounced as lies. Who then shall be the arbiter of political truth? Ultimately, in a free society, the truth of political back and forth must be adjudicated in the marketplace of ideas, in the context of the uninhibited, robust, and wide-open debate on public issues that the First Amendment protects. The law steers far clear of requiring judicial determination of political truth, and does so because of the serious dangers to democracy and the political process that would result from turning the courts into truth squads with respect to core political speech on matters of public concern. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 24 of 28 PAGEID #: 2413
19 (Dkt. No. 108, at 3, 5 (citations omitted).) 2
All of that reasoning applies even more powerfully to SBAs First Amendment challenge to Ohios false-statement law. Under that law, bureaucrats and judges must evaluate competing political claims and determine which is the truth, with criminal penalties at stake for those who lied. And while defamatory statements are one of the historic categories of unprotected speech, Alvarez, 132 S. Ct. at 2544 (plurality), there is no precedent for Ohios false-statement law except, perhaps, the infamous and unconstitutional Sedition Act of 1798. N.Y. Times, 376 U.S. at 276 (affirming broad consensus that the [Sedition] Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment). II. THE OTHER PRELIMINARY INJUNCTION FACTORS ARE ALSO SATISFIED. The other preliminary injunction requirements are also clearly satisfied here. Indeed, in First Amendment cases, likelihood of success on the merits often will be determinative, as the other factors necessarily depend on whether the challenged law is unconstitutional. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). A. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). Once a plaintiff has shown a likelihood of success on a claim asserting an ongoing or future violation of First Amendment rights, the irreparable-harm requirement is necessarily also satisfied. Connection, 154 F.3d at 288 ([If plaintiff] can establish a substantial likelihood of success on the merits of its First Amendment claim, it also has established the possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.); Overstreet v. Lexington-Fayette Urban Cnty. Govt, 305 F.3d 566, 578 (6th Cir. 2002) (same).
2 As the Court explained, the common law does not treat speech associating a political candidate with a mainstream policy view as defamatoryfor many of the same reasons that the First Amendment does not tolerate allowing the government to resolve the truth of political charges or countercharges. Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 25 of 28 PAGEID #: 2414
20 B. The balance of hardships also favors injunctive relief here. As the Supreme Court explained, denying prompt judicial review would impose a substantial hardship on [SBA], forcing [it] to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other. SBA, slip op. at 18. Given that the 2014 elections are less than five months away, denial of preliminary relief would compel SBA to make just that Hobsons choice. By contrast, issuing a preliminary injunction will not harm the Stateit will merely prevent it from enforcing an unconstitutional regime, in which it has no legitimate interest. See Connection, 154 F.3d at 288 (government harmed only if enforcement of a constitutional law were enjoined); Deja Vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001) (injunction causes no substantial harm to others if challenged law is unconstitutional). C. Finally, it is always in the public interest to prevent the violation of a partys constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) ([T]he public as a whole has a significant interest in ... protection of First Amendment liberties.). That is especially true where, as here, denial of an injunction would prevent the public from hearing the speakers message. [F]ree expression is, after all, of transcendent value to all society, and not merely to those exercising their rights. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). The denial of injunctive relief to SBA would thus harm not only SBA, but society as a whole, which [would be] deprived of an uninhibited marketplace of ideas in connection with the 2014 elections. Virginia v. Hicks, 539 U.S. 113, 119 (2003). CONCLUSION For these reasons given above, this Court should issue a preliminary injunction enjoining the OEC and its members from enforcing Ohio Revised Code 3517.21(B)(9)-(10). Case: 1:10-cv-00720-TSB Doc #: 120 Filed: 06/20/14 Page: 26 of 28 PAGEID #: 2415
21
Respectfully submitted,
Michael A. Carvin* (D.C. Bar No. 366784) Yaakov M. Roth (D.C. Bar No. 995090) JONES DAY 51 Louisiana Avenue, N.W. Washington D.C. 20001 (202) 879-3939 (202) 626-1700 fax macarvin@jonesday.com
*admitted pro hac vice
/s/ David R. Langdon David R. Langdon (0067046) Trial Attorney Joshua B. Bolinger (0079594) LANGDON LAW LLC 8913 Cincinnati-Dayton Road West Chester, Ohio 45069 (513) 577-7380 (513) 577-7383 fax dlangdon@langdonlaw.com Robert A. Destro (0024315) 2312 N. Powhatan Street Arlington, VA 22205-2116 (202) 905-6064 (703) 534-1530 fax robertdestro@hotmail.com
22 CERTIFICATE OF SERVICE I certify that the foregoing Plaintiff Susan B. Anthony Lists Motion for a Preliminary Injunction, with Memorandum in Support was served electronically on June 20, 2014, upon all counsel of record via the courts electronic filing system.