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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.
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Case No.: 1:10-cv-00720

Judge Timothy S. Black


ORAL ARGUMENT REQUESTED



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.


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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
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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

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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
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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
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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
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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).
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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.
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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).
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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
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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.
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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.
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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.)

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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.)
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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,
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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.
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(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.
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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).
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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

Counsel for Plaintiff Susan B. Anthony List




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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.

/s/ Joshua B. Bolinger
Joshua B. Bolinger


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