NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0822n.06
No. 12-4158
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Sep 11, 2013
COAST CANDIDATES PAC and ) DEBORAH S. HUNT, Clerk
COALITION OPPOSED TO )
ADDITIONAL SPENDING & TAXES )
) ON APPEAL FROM THE UNITED
Plaintiffs-Appellants, ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
v. )
)
OHIO ELECTIONS COMMISSION, )
BRIAN FELMET, JAYME P. SMOOT, )
DEGEE WILHELM, TERRANCE J. )
CONROY, LYNN A. GRIMSHAW, )
KIMBERLY G. ALLISON, and HELEN )
E. BALCOLM )
)
Defendants-Appellees. )
)
Before: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. In 2011, the general election ballot for the City
of Cincinnati included a proposed amendment to the city charter that would have blocked the
construction of a streetcar system in Cincinnati. During the campaign, the Coalition Opposed to
Additional Spending & Taxes (“COAST”), a group that supported the amendment, posted several
“tweets” on its Twitter feed about funding for the streetcar system. Cincinnatians for Progress, a
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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group that opposed the amendment, filed complaints with the Ohio Elections Commission (“the
Commission”) against COAST and COAST Candidates PAC, arguing that the “tweets” violated
section 3517.22(B)(2) of the Ohio Revised Code, which prohibits the dissemination of false
statements in connection with a ballot proposition or issue. COAST and COAST Candidates PAC
filed suit against the Commission and its members in federal district court seeking a declaration that
section 3517.22(B)(2) is unconstitutional on its face and as applied to them and asking the court to
enjoin its enforcement. The district court granted the defendants’ motion to dismiss the complaint,
holding that the plaintiffs lack standing to sue. We affirm.
I.
The Commission, an administrative body created under Chapter 3517 of the Ohio Revised
Code, is charged with the enforcement of Ohio election laws, including section 3517.22.
Section 3517.22 provides that:
(B) No person, during the course of any campaign in advocacy of or in opposition to
the adoption of any ballot proposition or issue, by means of campaign material,
including sample ballots, an advertisement on radio or television or in a newspaper
or periodical, a public speech, a press release, or otherwise, shall knowingly and with
intent to affect the outcome of such campaign do any of the following:
....
(2) Post, publish, circulate, distribute, or otherwise disseminate, a
false statement, either knowing the same to be false or acting with
reckless disregard of whether it was false or not, that is designed to
promote the adoption or defeat of any ballot proposition or issue.
Ohio Rev. Code Ann. § 3517.22 (West 2013).
No person can be prosecuted for violating Section 3517.22 unless a complaint first has been
filed with the Commission. Id. at § 3517.153(C). A complaint may be filed by the secretary of state,
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an official at the board of elections, or any person who submits an affidavit based on personal
knowledge. Id. at § 3517.153(A). If a complaint alleging a violation of Section 3517.22 is filed
ninety or fewer days before a general election, a panel of at least three members of the Commission
must hold an expedited hearing in order “to determine whether there is probable cause to refer the
matter to the full commission for a hearing.” Id. at § 3517.156(A); see also §§ 3517.154(A)(2)(a)
& 3517.156(B)(1).
At the expedited hearing, the panel can take one of three actions. It can (1) dismiss the
complaint, (2) find that there is probable cause to refer the matter to the full Commission for further
consideration, or (3) find that the evidence is insufficient for the panel to make a probable cause
determination, in which case it must request that an attorney further investigate the complaint and
refer the matter to the full Commission for a hearing. Ohio Rev. Code Ann. § 3517.156(C); Ohio
Admin. Code § 3517-1-10(D)(3) (2013). If the matter is referred to the full Commission, it must
hold a hearing to “determine whether . . . the violation alleged in the complaint has occurred.” Ohio
Rev. Code Ann. § 3517.155(A)(1) (West 2013). If the Commission finds that a violation of section
3517.22 has occurred, it must refer the matter to the county prosecutor. Id. at § 3517.155(D)(2);
Ohio Admin. Code § 3517-1-14(C) (2013). It cannot impose a fine. Ohio Rev. Code Ann.
§ 3517.155(D)(2) (West 2013). A party may appeal an adverse determination of the Commission
to the county’s court of common pleas. Id. at §§ 119.12 & 3517.157(D).
COAST is an unincorporated association of individuals whose activities are focused in
southwest Ohio. COAST Candidates PAC is a political action committee operated by COAST and
registered with the Hamilton County Board of Elections. During the 2011 general election
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campaign, COAST posted “tweets” on its Twitter account in support of “Issue 48,” the amendment
to the city charter that would have blocked the construction of a streetcar system in Cincinnati. For
example, an October 21, 2011, “tweet” stated: “12.5% of the fire dept. browned out again today to
pay for streetcar boondoggle that 62% think is a waste. @CFDHistory YES ON 48 No streetcar.”
On October 28, 2011, Cincinnatians for Progress filed a complaint with the Commission
alleging that twenty of the “tweets” violated Section 3517.22(B)(2) because they falsely stated that
the city’s fire department services were being “browned out” or reduced in order to fund the streetcar
project. Cincinnatians for Progress filed the complaint against COAST Candidates PAC, even
though it was COAST that operated the Twitter feed at issue. On November 3, 2011, a panel of the
Commission held an expedited hearing on the complaint. COAST Candidates PAC argued that it
did not “tweet” the allegedly false comments and that, in any event, the comments were “100 percent
true and certainly protected speech under the First Amendment.” The panel found that there was no
probable cause to believe that COAST Candidates PAC had violated the law and dismissed the
complaint.
On November 7, 2011, Cincinnatians for Progress filed a complaint against COAST and
Mark W. Miller, COAST’s treasurer, alleging that the same twenty “tweets” violated section
3517.22(B)(2). On November 17, 2011, a panel of the Commission held a hearing at which COAST
argued that its statements were true. The panel concluded that there was no probable cause to
believe that COAST had violated the law and dismissed the complaint.
Meanwhile, on November 1, 2011, COAST and COAST Candidates PAC sued the
Commission and its members in federal district court seeking a declaration that section
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3517.22(B)(2) is unconstitutional on its face and as applied to them and asking the court to enjoin
its enforcement. They argued that their First Amendment rights were harmed because they
“desire[d] to continue to disseminate and publish statements concerning Issue 48 in the days leading
up the election,” but they refrained from doing so because they were afraid of being “dragged” before
the Commission. They further argued that they wished to “disseminate [their] position[s] on various
initiative matters appearing on the ballot” after the election but anticipated that they would continue
to temper their speech due to their concern about future enforcement actions.
COAST and COAST Candidates PAC filed a motion for a temporary restraining order and
preliminary injunction. On November 2, 2011, the district court denied the motion and stayed the
proceedings pursuant to Younger v. Harris, 401 U.S. 37 (1971). The district court lifted the stay on
December 22, 2011. Shortly thereafter, the Commission and its members moved to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) on mootness, ripeness, and standing
grounds.
The district court granted the motion to dismiss, holding that COAST and COAST
Candidates PAC cannot satisfy the injury-in-fact requirement for constitutional standing. The
district court noted that COAST and COAST Candidates PAC identify their injury as “chilled
speech,” but that subjective chill, without more, does not establish actual or imminent objective
harm. Furthermore, the district court observed that COAST and COAST Candidates PAC cannot
demonstrate a credible threat of prosecution under section 3517.22(B)(2).
II.
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The district court granted the defendants’ motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Challenges to subject matter
jurisdiction are classified as facial or factual attacks. Carrier Corp. v. Outokumpu Oyj, 673 F.3d
430, 440 (6th Cir. 2012). “A facial attack is a challenge to the sufficiency of the pleading itself.”
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) (emphasis omitted). When evaluating a
facial attack, the district court takes the allegations in the complaint as true, and if those allegations
establish federal claims, then jurisdiction exists. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 330 (6th Cir. 2007). A factual attack “is not a challenge to the sufficiency of the
pleading’s allegations, but a challenge to the factual existence of subject matter jurisdiction.”
Ritchie, 15 F.3d at 598. When a factual dispute arises, “the district court must . . .weigh the
conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does
not exist.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). The district
court “has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to
resolve disputed jurisdictional facts.” Id. This court typically reviews de novo a district court’s
decision to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Howard v. Whitbeck,
382 F.3d 633, 636 (6th Cir. 2004). However, when a Rule 12(b)(1) motion involves a factual attack,
this court reviews the district court’s factual findings for clear error. Id.
The Commission and its members argue that the district court correctly characterized their
argument as a factual attack on jurisdiction and, therefore, we should not disturb the district court’s
factual findings unless they are clearly erroneous. COAST and COAST Candidates PAC point out
that the factual issues underlying the jurisdictional question are not in dispute and contend that we
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should review the legal question of whether they have standing de novo. Although the district court
characterized the defendants’ argument as a factual attack, it held, based on the allegations in the
complaint, that COAST and COAST Candidates PAC do not meet the requirements for
constitutional standing. Where the district court essentially makes no factual findings in deciding
that it lacks jurisdiction, we treat a Rule 12(b)(1) motion as a facial attack and review de novo. Kohl
v. United States, 699 F.3d 935, 939 n.1 (6th Cir. 2012); see also Howard, 382 F.3d at 636-37
(“While this is a ‘factual’ challenge, as the parties submitted exhibits relating to the state-court
proceedings, the district court made no factual findings that would require deference.”).
III.
A.
The district court dismissed the plaintiffs’ complaint on the basis of standing. On appeal,
the parties focus primarily on standing. Therefore, we decide the case on this basis. However, we
note that our recent decision in Susan B. Anthony List v. Driehaus, Nos. 11-3894 & 11-3925, 2013
WL 1942821 (6th Cir. May 13, 2013), another Ohio election law case to which COAST was a party,
indicates that the plaintiffs’ complaint could also be dismissed based on ripeness.
“Like standing, ripeness ‘is drawn both from Article III limitations on judicial power and
from prudential reasons for refusing to exercise jurisdiction.’” Warshak v. United States, 532 F.3d
521, 525 (6th Cir. 2008) (en banc) (quoting Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538
U.S. 803, 808 (2003)). “[T]he ripeness doctrine poses ‘a question of timing’ and counsels against
resolving a case that is ‘anchored in future events that may not occur as anticipated, or at all.’”
Driehaus, 2013 WL 1942821, at *3 (quoting Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284
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(6th Cir. 1997)). “Three factors guide the ripeness inquiry: ‘(1) the likelihood that the harm alleged
by the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to
produce a fair adjudication of the merits of the parties’ respective claims; and (3) the hardship to the
parties if judicial relief is denied at this stage in the proceedings.’” Berry v. Schmitt, 688 F.3d 290,
298 (6th Cir. 2012) (quoting Grace Cmty. Church v. Lenox Twp., 544 F.3d 609,615 (6th Cir. 2008)).
In Driehaus, Susan B. Anthony List (“SBA List”) and COAST sued the Commission,
challenging the constitutionality of provisions of Ohio’s false statement statute dealing with
candidates for public office. Driehaus, 2013 WL 1942821, at *1. A complaint had been filed with
the Commission against SBA List, and a three-member panel determined that there was probable
cause to believe that SBA List violated the law, but the complaint was withdrawn before the full
Commission could reach a final decision or penalize SBA List. Id. at *1-2. We held that SBA List
could not demonstrate the requirements for ripeness, including the likelihood that the harm alleged
would come to pass. We observed that “the Commission never found that SBA List violated Ohio’s
false-statement law” and the Commission’s past actions did not demonstrate that it was likely to
threaten SBA List with prosecution in the future. Id. at *5. We explained:
The Commission’s probable-cause determination was not a final adjudication, a
finding of a violation, or even a warning that SBA List’s conduct violated Ohio law.
While it green-lighted further investigation, the Commission expressed no opinion
about the application of Ohio law to SBA List’s speech. SBA List does not suggest
that the probable-cause finding would carry any weight in the future in this hearing
or any other. And its contention that a preliminary assessment that a violation may
have occurred establishes the threat of future harm finds no support in our cases. No
sword of Damocles dangles over SBA List to justify its fears.
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Id. Thus, we held that SBA List’s claims were not ripe for review.1
Our reasoning in Driehaus applies even more forcefully here, where the initial panels did not
even refer the complaints against COAST and COAST Candidates PAC to the full Commission but,
rather, dismissed the complaints outright for lack of probable cause. Because COAST and COAST
Candidates PAC cannot satisfy the likelihood of harm requirement for ripeness, their lawsuit could
be dismissed based on ripeness alone. However, because the district court based its decision on
standing and the parties focus on this issue on appeal, we consider whether COAST and COAST
Candidates PAC have standing to sue.
B.
“Article III of the Constitution gives federal courts subject matter jurisdiction over actual
cases or controversies, neither of which exists unless a plaintiff establishes his standing to sue.”
Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012). “Because federal courts sit
solely to decide on the rights of individuals, standing is the threshold question in every federal case.”
Id. (internal quotation marks, alterations, and citations omitted).
In order to establish Article III standing, a plaintiff must meet three requirements:
First, the 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
1
We also held that COAST’s claims, which “ stemm[ed] from the mere possibility that Ohio
law will be pressed against it” were “even more speculative than SBA List’s,” because COAST had
never been involved in a Commission proceeding and no individual had enforced or threatened to
enforce the challenged laws against it. Driehaus, 2013 WL 1942821, at *8.
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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.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks, alterations,
and citations omitted). Each element is “an indispensable part of the plaintiff’s case” and “must be
supported in the same way as any other matter on which the plaintiff bears the burden of proof.” Id.
at 561. A plaintiff’s standing to sue is determined “as of the time the complaint is filed.” Cleveland
Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001).
COAST and COAST Candidates PAC bring suit pursuant to the Declaratory Judgment Act,
28 U.S.C. § 2201, “which provides the mechanism for seeking pre-enforcement review of a statute.”
Magaw, 132 F.3d at 279. “Where a plaintiff alleges that state action has chilled his speech, ‘it is not
necessary that [he] first expose himself to actual arrest or prosecution to be entitled to challenge a
statute that he claims deters the exercise of his constitutional rights.’” Berry, 688 F.3d at 296
(quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). However, a plaintiff seeking pre-
enforcement review2 “must still satisfy the injury-in-fact requirement by showing: (1) ‘an intention
to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by
2
The plaintiffs characterize COAST’s claim as a pre-enforcement challenge. However, they
argue that the complaint against COAST Candidates PAC was pending before the Commission at
the time they filed suit and, therefore, the Commission enforced Section 3517.22(B)(2) against
COAST Candidates PAC. This is incorrect. As previously discussed, the Commission took no
action against COAST or COAST Candidates PAC either before or after they filed suit in district
court and instead dismissed the complaints against them for lack of probable cause. Neither
plaintiff was prosecuted for violating section 3517.22(B)(2), so both plaintiffs’ claims are best
characterized as pre-enforcement challenges. See Driehaus, 2013 WL 1942821, at *5 (observing
that a probable cause determination by the Commission “is not a concrete application of state law
that enables [a party] to claim that the law has been enforced against it”) (internal quotation marks
and citation omitted).
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a statute,’ and (2) ‘a credible threat of prosecution thereunder.’” Id. (quoting Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)).
Section 3517.22(B)(2) prohibits a person from disseminating false statements, either knowing
the statements to be false or with reckless disregard for their falsity, in connection with a ballot
proposition or issue. COAST and COAST Candidates PAC do not claim that they intend to violate
the statute by disseminating false statements, which is not a constitutionally protected activity.
Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 577 (6th Cir. 1991) (“[F]alse speech, even
political speech, does not merit constitutional protection if the speaker knows of the falsehood or
recklessly disregards the truth.”). Rather, they claim that they desired to make true statements about
Issue 48 prior to the November 2011 election and to disseminate their positions “on various initiative
matters appearing on the ballot” after the election. They argue that their First Amendment right to
engage in protected political speech has been harmed because they refrained from and continue to
refrain from making true statements on political issues due to their fear of being “dragged” before
the Commission. Thus, they allege that their speech both before and after the November 2011
election has been chilled.3
“[C]onstitutional violations may arise from the deterrent, or ‘chilling,’ effect of governmental
regulations that fall short of a direct prohibition against the exercise of First Amendment rights.”
Laird v. Tatum, 408 U.S. 1, 11 (1972). In Laird, the Supreme Court considered
3
For purposes of standing analysis, “any distinction between claims of past and future (i.e.,
forward-looking) chill lacks purpose,” and, therefore, we decline to make such a distinction.
Morrison v. Bd. of Educ., 521 F.3d 602, 609 n.7. (6th Cir. 2008).
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whether the jurisdiction of a federal court may be invoked by a complainant who
alleges that the exercise of his First Amendment rights is being chilled by the mere
existence, without more, of a governmental investigative and data-gathering activity
that is alleged to be broader in scope than is reasonably necessary for the
accomplishment of a valid governmental purpose.
Id. at 10. The Court held that the plaintiffs could not demonstrate that they had suffered an injury
sufficient to confer standing because the alleged chill arose “merely from the [plaintiffs’] knowledge
that a governmental agency was engaged in certain activities [and] from the [plaintiffs’] concomitant
fear that, armed with the fruits of those activities, the agency might in the future take some other and
additional action detrimental to [the plaintiffs].” Id. at 11. The Court observed that “[a]llegations
of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm
or a threat of specific future harm.” Id. at 13-14.
In Morrison v. Board of Education of Boyd County, we considered “what ‘more’ might be
required to substantiate an otherwise-subjective allegation of chill, such that a litigant would
demonstrate a proper injury-in-fact.” 521 F.3d 602, 609 (6th Cir. 2008) (footnote omitted).
Surveying sister circuits’ precedent, we noted that “[a] non-exhaustive list includes the following:
the issuance of a temporary restraining order; an eight-month investigation into the activities and
beliefs of the plaintiffs by Department of Housing and Urban Development officials; and numerous
alleged seizures of membership lists and other property belonging to the plaintiffs.” Id. (internal
quotation marks and citations omitted). We concluded “that for purposes of standing, subjective
chill requires some specific action on the part of the defendant in order for the litigant to demonstrate
an injury-in-fact.” Id.
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In Morrison, the plaintiff, a high school student, believed that homosexuality is a sin and that
he had a responsibility to tell others when their conduct conflicted with his conception of Christian
morality. Id. at 605. He brought a claim against the school board, arguing that his speech was
chilled by a school policy prohibiting students from making stigmatizing or insulting comments
about other students’ sexual orientation. Id. We held that the plaintiff’s “choice to chill his own
speech based on his perception that he would be disciplined for speaking” did not constitute an injury
in fact where “[t]he record [was] silent as to whether the school district threatened to punish or
would have punished Morrison for protected speech in violation of its policy.” Id. at 610. Morrison
contrasts with McGlone v. Bell, in which we held that the plaintiff, an evangelical Christian who
wished to speak on a college campus, could demonstrate that his speech was objectively chilled
where school officials told him that he could not speak on campus without first obtaining a permit
and, on one occasion, campus police threatened him with arrest if he did not stop speaking and leave
campus. 681 F.3d 718, 729-31 (6th Cir. 2012).
COAST and COAST Candidates PAC argue that they have demonstrated more than
subjective chill because at the time they filed their lawsuit, a complaint against COAST Candidates
PAC was pending before the Commission and a complaint against COAST was imminent.
Nonetheless, neither the Commission nor its members had taken any specific actions suggesting that
the plaintiffs’ alleged self-censorship was objectively reasonable. See Morrison, 521 F.3d at 609
(observing that the defendant must take a specific action against the litigant to demonstrate an injury
in fact). Although Cincinnatians for Progress had filed complaints with the Commission against
COAST Candidates PAC and later COAST, the defendants’ actions did not indicate that Section
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3517.22(B)(2) was likely to be enforced against the plaintiffs, and, in fact, the Commission
dismissed the complaints for lack of probable cause. Thus, here there is only subjective chill.
Furthermore, COAST and COAST Candidates PAC cannot demonstrate a likelihood that
Section 3517.22(B)(2) will be enforced against them in the future. “A threatened injury must be
certainly impending to constitute injury in fact.” White v. United States, 601 F.3d 545, 553 (6th Cir.
2010) (internal quotation marks and citation omitted). Previous sanctions against a plaintiff “might
be ‘evidence bearing on whether there is a real and immediate threat of repeated injury,’” but “where
the threat of repeated injury is speculative or tenuous, there is no standing to seek injunctive relief.”
Grendell v. Ohio Supreme Court, 252 F.3d 828, 833 (6th Cir. 2001) (quoting City of Los Angeles
v. Lyons, 461 U.S. 95, 102 (1983)).
For example, in Fieger v. Michigan Supreme Court, the plaintiff, a Michigan attorney who
twice had been charged with violating the “courtesy and civility” provisions of the Michigan Rules
of Professional Conduct (“MRPC”), challenged the constitutionality of the provisions on their face.
553 F.3d 955, 957 (6th Cir. 2009). We held that the plaintiff could not demonstrate a reasonable
threat of future sanction. Id. at 967. We observed that in order to demonstrate a palpable threat of
future injury, plaintiffs challenging the disciplinary provisions would have to establish:
(1) that they are now, or highly likely to be, speaking about a pending case; (2) that
such speech will concern participants in that case and be vulgar, crude, or personally
abusive, exposing them to sanctions under MRPC 3.5(c) or MRPC 6.5(a); (3) that the
Michigan Supreme Court would, in its discretion, impose such sanctions; and (4) that
the imposition of those sanctions would violate plaintiffs’ First Amendment rights.
Id. We concluded “that such a chain of events is simply too attenuated to establish the injury in fact
required to confer standing.” Id.
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Similarly, the chain of events upon which COAST’s and COAST Candidates PAC’s future
prosecution depends is far too attenuated to confer standing. The district court observed that:
the Commission itself cannot initiate any proceeding or investigate any person or
entity on its own initiative. Instead, a complaint must be “by affidavit of any person,
on personal knowledge, and subject to the penalties for perjury, or upon the filing of
a complaint made by the secretary of state or an official at the board of elections.”
That means that Plaintiffs would need to make some statement in the future, then
Cincinnatians for Progress, or some other group or individual, would need to file a
groundless complaint against Plaintiffs, and Defendants would then fail to follow the
provisions in Section 3517.22.4
(DE 26, Order, Page ID 371) Even if the Commission found that there was probable cause to believe
that COAST or COAST Candidates PAC had violated section 3517.22(B)(2), the Commission could
only make a recommendation to a county prosecutor, who would have discretion as to whether to
proceed with prosecution. See Ohio Rev. Code Ann. § 3517.155(D)(2) (West 2013); Ohio Admin.
Code § 3517-1-14(C) (2013). Thus, the threat of COAST’s and COAST Candidates PAC’s future
injury “is highly conjectural, resting on a string of actions the occurrence of which is merely
speculative.” Grendell, 252 F.3d at 833.
Because COAST and COAST Candidates PAC cannot demonstrate “(1) an intention to
engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a
statute, and (2) a credible threat of prosecution thereunder,” they cannot establish an injury in fact
sufficient to provide them with standing to bring their pre-enforcement challenge to Section
3517.22(B)(2). See Berry, 688 F.3d at 296 (internal quotation marks and citation omitted).
4
That is, the Commission would have to punish COAST and COAST Candidates PAC for
true, protected speech instead of the false, unprotected speech prohibited by section 3517.22.
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VI.
COAST and COAST Candidates PAC lack standing to bring their claims. Alternatively,
their claims are not ripe for review. Therefore, we affirm the district court’s dismissal of the
plaintiffs’ complaint. We also deny their motion5 for the court to take judicial notice of a proposed
amicus brief submitted to the district court by Ohio Attorney General Michael DeWine because we
find that the issues in this case can be decided without reference to the brief or the material contained
therein.
5
On March 27, 2013, COAST and COAST Candidates PAC filed a motion for the court to
take judicial notice a proposed amicus brief submitted to the district court by Ohio Attorney General
Michael DeWine. The brief, which was filed in support of neither party, expresses “serious concerns
about the constitutionality of Ohio’s generalized ‘false statement’ law subsections.” We deferred
a ruling until after the case was heard on the merits.
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