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Case No. 1:10-CV-720
consolidated with
Case No. 1:10-CV-754

Judge Black







Plaintiff Coalition Opposed to Additional Spending & Taxes (COAST) moves,
pursuant to Fed. R. Civ. P. 65, for the issuance of a preliminary injunction enjoining the
enforcement of Section 3517.21(B)(9) and Section 3517.21(B)(10) of the Ohio Revised Code by
the Ohio Elections Commission and its members. In the interest of judicial economy and
efficiency, COAST refers to and incorporates by reference the legal arguments and analysis in
Susan B. Anthony Lists Motion for a Preliminary Injunction (Doc. No. 120), as well as
COASTs earlier Motion for Temporary Restraining Order and Preliminary Injunction (Doc.
Nos. 2 & 2-1 in Case No. 1:10-CV-754). COAST tenders the following memorandum, together
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with the attached Declaration of Mark Miller, to supplement the arguments of the SBA List and
its earlier arguments.

In Susan B. Anthony List v. Driehaus, 573 U.S. ___ (June 16, 2014), the Supreme Court
held that COAST has demonstrated an injury in fact sufficient for Article III standing, slip op.,
at 18, and, thus, COAST, just like Susan B. Anthony List (SBA List), may proceed with its
pre-enforcement First Amendment challenge herein to Ohios false-political-speech statutes.
In connection with the forthcoming 2014 election, COAST desires, similar to SBA List,
to criticize Ohio Congresswoman Marcy Kaptur and her support of taxpayer-funded abortion
based upon her vote in favor of the Affordable Care Act (the ACA). Similar to the contention
of then-Congressman Driehaus before the Ohio Elections Commission that he didnt vote for
taxpayer-funded abortion because of an executive order clarifying and enforcing long-standing
law banning the use of federal funds for abortion services, (Doc. No. 25-3, Exhibit C,
PageID#606), Congresswoman Kaptur has staked out a similar position in order to rationalize
her vote in favor of the Act:
Congresswoman Kaptur said she was convinced that the legislation will maintain
existing law on abortion. We have received assurances that we will be able to
work with the Administration to assure that existing law is maintained not to
change it in any way, but to make sure that it applies to this bill.


And lest there be any doubt whether Congresswoman Kaptur views her vote for the ACA
any different than then-Congressman Driehaus as it relates to providing or allowing taxpayer-
funded abortions, Congresswoman Kapturs spokesman was reported as specifically attacking
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the position of SBA List and, just like then-Congressman Driehaus, asserted reliance upon an
executive order to dispute the present contention of SBA List and COAST:

Steve Fought, a spokesperson for Kaptur, said the Susan B. Anthony List has a
political agenda rather than an issues agenda in their opposition to the executive
I think these so-called pro-life groups I think their complaint is more with
whos signing the executive order than the executive order itself, Fought said.
Fought stood by Obamas executive order.
The executive order, any way you cut it, is a good thing if youre against federal
funding of abortion, unless you have a political agenda, Fought said.
Congresswoman Kaptur has been consistent in her voting pattern since shes
been a member of Congress. And she calls it pro-family.

Notwithstanding Congresswoman Kapturs assertion that her vote for the ACA didnt
constitute a vote for taxpayer-funded abortions, COAST directly disagrees with such a
conclusion and, instead, seeks and desires to have its voice added to the marketplace of ideas on
the issue leading up to the forthcoming election. For as extensively developed in the amicus

While the press release and the article from Human Events may, concededly, constitute
hearsay, this matter is presently before the Court on a motion for preliminary injunction. As the
Sixth Circuit has recognized, a preliminary injunction is customarily granted on the basis of
procedures that are less formal and evidence that is less complete than in a trial on the merits.'"
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.
2007) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). Furthermore, [t]he
United States Court of Appeals for the Sixth Circuit has not explicitly stated whether hearsay
evidence may be considered in the context of a preliminary injunction hearing. This Court,
however, and other district courts within this circuit have considered such evidence, as have
numerous other circuit courts. Damons Restaurants, Inc. v. Eileen K Inc., 461 F.Supp.2d 607
(S.D. Ohio 2006)(internal citations omitted); accord United States v. OBrien, 836 F. Supp. 438,
441 (S.D. Ohio 1993)([t]he Federal Rules of Evidence do not apply at preliminary injunction
hearings). And notwithstanding the foregoing, with respect to the press release, it is published
on an official governmental website and, thus, is appropriate for taking judicial notice. E.g.,
Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir.2003) (taking judicial notice of information
from official government website). If any doubt or issue actually exists with respect to these
matters, then at a preliminary injunction hearing, the presence of Congresswoman Kaptur or her
spokesman can be compelled wherein they can confirm or refute these reported positions on the
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brief filed in the Supreme Court by the Bioethic Ethics Fund, assertions equating a political
candidates vote for the ACA with a vote for taxpayer-funded abortion are truthful. (See amicus
brief of Bioethic Ethics Fund (attached hereto as Exhibit B), at 2.) But not only has a panel of
the Ohio Elections Commission already concluded that the SBA List stated a falsehood when it
equate a vote for the ACA with taxpayer-funded abortion, but this Court also held that SBA
Lists statements were factually false because the ACA did not directly appropriate federal funds
for the express purpose of funding abortions. See Susan B. Anthony List v. Driehaus, 805 F.
Supp. 2d 423, 435-36 (S.D. Ohio 2011). Thus, COAST presently finds itself between the Scylla
of knowingly advocating and publishing a political position which has already been declared to
be false so as to face the real and imminent risk of being subjected to proceedings under Ohios
false-political-speech statute and the Charybdis of simply not adding its voice to political
discussion and foregoing any participation in political debate as it relates the ACA and taxpayer-
funded abortion. But forcing COAST into such a position is clearly repugnant to basic principles
under the First Amendment.
And in addition to Congresswoman Kaptur, other candidates for public office in the
forthcoming election also have publicly expressed support for the ACA. COAST also desires to
tie these candidates support for the Act to supporting taxpayer-funded abortions. Thus, while
these other candidates may not have expressly voted for taxpayer-funded abortion (as they
were not in the 111th Congress), they have unequivocally declared their support of the ACA and,
in turn, its enabling of taxpayer-funded abortions. At present, COAST has identified two other
candidates for public office who have publicly declared their support for the ACA and for whom
COAST desires to publicize these candidates support for the Act and the associated taxpayer
funding of abortions:
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Denise Driehaus, an Ohio state representative from Hamilton County seeking
relection in 2014; and

David Pepper, the nominee of the Democrat Party for Ohio Attorney General at
the 2014 general election.

While COAST desires to publicize and criticize these candidates support for taxpayer-funded
abortions through their support of the ACA, COAST is positioned similarly as it is with respect
to Congresswoman Kaptur either engage in core political speech and risk the prospect of being
subjected to an inquisition before the Ohio Elections Commission (or even a panel of the
Commission) or remain silent.
For if COAST should proceed with the exercise of core political speech by either
criticizing these candidates vote or support for taxpayer-funded abortions or disagreeing with
such candidates efforts to explain their vote, COAST faces the prospect of the false-political-
speech statutes being applied against it. As the Supreme Court recognized and established as the
law of the case:
the threat of future enforcement of the false statement statute is substantial. Most
obviously, there is a history of past enforcement here: SBA was the subject of a
complaint in a recent election cycle. Here, the threat is even more substantial
given that the Commission panel actually found probable cause to believe that
SBAs speech violated the false statement statute. Indeed future complainants
may well invoke the prior probable-cause finding to prove that SBA knowingly
Because the universe of potential complainants is not restricted to state officials
who are constrained by explicit guidelines or ethical obligations, there is a real
risk of complaints from, for example, political opponents. And petitioners,
who intend to criticize candidates for political office, are easy targets.

Susan B. Anthony List v. Driehaus, 573 U.S. ___, slip op., at 14 (internal citations omitted).
Like the SBA List, COAST has a substantial likelihood of success on the merits so as to
merit the issuance of the requested preliminary injunction. Since the last time this matter was
before this Court, the Supreme Court has addressed the constitutional protection to undisputedly
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false statements (as opposed to putatively false statements as involved in this case). As the SBA
List developed in its pending motion, all nine justice in United States v. Alvarez, 567 U.S. ___,
132 S.Ct 2537 (2012), recognized the constitutional infirmities in the effort of the State of Ohio,
through its false-political-speech statute, to serve as the arbiter of political truth. In lieu of
repeating or even attempting to further develop that which is excellently presented to the Court,
COAST would incorporate by reference the analysis of Alvarez already tendered by the SBA
List. (See SBA List Motion (Doc. No. 120), at 8-18.)
As for the remaining elements to consider the issuance vel non of a preliminary
injunction, COAST previously addressed those issue at the outset of the case and would
incorporate by reference that analysis (Doc. No. 2-1 in Case No. 1:10-CV-754, at 29-31), which
tracks the recent arguments put forth by SBA List on the issue (SBA List Motion (Doc. No. 120),
at 19-20).

Quid est veritas? As this Court previously recognized:
The concomitant principles of free speech and truth collide most violently
in the arena of political speech. 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

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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(Doc. No. 108, Order Granting SBA Lists Renewed Motion for Summary Judgment, at 3 & 5
(quoting McIntyre v. Ohio Elec. Commn, 514, U.S. 334, 341 (1995), and New York Times v.
Sullivan, 376 U.S. 254, 270 (1964)).)
For the foregoing reasons, as well as those incorporated herein by reference, as well as to
promote and encourage the basic principle of the First Amendment that advances uninhibited,
robust, and wide-open debate on issues in the marketplace of ideas, this Court should issue a
preliminary injunction enjoining the Ohio Elections Commission and its members from
enforcing Section 3517.21(B)(9) and Section 3517.21(B)(10) of the Ohio Revised Code.

Respectfully submitted,

_/s/ Curt C. Hartman_________
Curt C. Hartman (0064242)
3749 Fox Point Court
Amelia, Ohio 45102
(513) 752-2878

Christopher P. Finney (0038998)
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6655

Attorneys for Plaintiff Coalition Opposed to
Additional Spending & Taxes


I certify that a copy of the foregoing will be served upon all counsel of record via the
Courts electronic filing system on the date of filing.

_/s/ Curt C. Hartman_________
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