Hicks v. Faris

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHRISTOPHER HICKS,

Case No. 1:20-cv-680

Plaintiff,

McFarland, J.

v. Bowman, M.J.

D. VINCENT FARIS, et al.,

Defendants.

REPORT AND RECOMMENDATION

The above-captioned case was recently referred to the undersigned magistrate

judge for consideration of three motions for summary judgment. In this Report and

Recommendation (“R&R”), the undersigned recommends that the Court issue a

declaratory judgment and preliminary injunction in favor of Plaintiff Hicks and against the

Defendant Ohio Attorney General to preclude enforcement of a statute that, as applied,

would criminalize the sending of emails to Plaintiff’s elected representative.

I. Background

Plaintiff Christopher R. Hicks is a self-described political watchdog and member of

the Central and Executive Committee of the Clermont County Republican Party.1 This

case concerns email communications sent to non-party Jeannie Zurmehly, who holds

public office as the Clermont County Treasurer. Hicks sent emails to Zurmehly’s

1Plaintiff has litigated other cases raising constitutional violations. See, e.g., Hicks v. Crowley, No. 2:22-cv-

2204-SDM-CMV (summary judgment motions pending); Hicks v. Clermont County Bd of County

Commissioners, No. 1:17-cv-677-TSB (dismissed pursuant to settlement following mediation before the

undersigned).

Government email address raising concerns about Zurmehly’s role as treasurer of the

Clermont County Republican Party. Zurmehly objected to the use of her Government

email for matters that she deemed unrelated to her public office and asked him to stop.

Hicks persisted.

In April 2020, Zurmehly filed an offense report with the Clermont County Sheriff’s

Office, seeking to press criminal charges for Telecommunications Harassment under

Ohio law. Based on a clear conflict of interest, the Clermont County Prosecutor’s Office

referred the matter to a special prosecutor with the Ohio Attorney General’s Office. After

the special prosecutor interviewed him at length, Hicks filed suit against both the Clermont

County Prosecutor and the Ohio Attorney General (“OAG”) in their official capacities,

seeking declaratory and injunctive relief to prevent enforcement of Ohio Rev. Code.

§2917.21(A)(5). Both Defendants and Hicks have moved for summary judgment.2 The

undersigned finds that § 2917.21(A)(5) is unconstitutional as applied to Hicks.

II. Standard of Review

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” A dispute is “genuine” when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). A court must

view the evidence and draw all reasonable inferences in favor of the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348

2Though only recently referred, Defendants’ motions for summary judgment were filed on November 2,

2021, with an Amicus Memorandum filed by the Clermont County Treasurer on January 4, 2022. Plaintiff’s

cross-motion was filed on January 13, 2022, with briefing completed on November 14, 2022.

(1986). The moving party has the burden of showing an absence of evidence to support

the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548

(1986.

The parties agree that this case can be fully resolved on summary judgment. The

undersigned therefore finds no need to set forth the applicable standard of review in

greater detail, other than noting that the undersigned has considered each party's motion

separately by “view[ing] the facts and any inferences that can be drawn from those facts

... in the light most favorable to the nonmoving party.” Keweenaw Bay Indian Comm. v.

Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal quotation marks and citations omitted).

see also Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437 F.Supp.2d 706, 732 (S.D. Ohio

2006) (explaining that cross-motions for summary judgment do not alter the applicable

standard of review, since each party's motion is reviewed separately by the Court).

III. Findings of Fact

In 2020, Jeannie Zurmehly served two roles: (1) as the duly elected Treasurer for

Clermont County, Ohio, a public office; and (2) as the treasurer for the Clermont County

Republican Party, a partisan (non-public) position. Clermont County assigned Zurmehly

an email address for her public position (“Government Email”). She maintained a separate

email address for her partisan position (“Party Email”), and a third email for personal

matters.

In November 2019, Hicks used Zurmehly’s Government email to request a copy of

an engagement letter for a lawsuit involving the Clermont County Republican Party.3 He

3Plaintiff testified he sent duplicate emails to Zurmehly’s private email (Hicks Dep., Doc. 40, PageID 461-

463). He also sent letters to Zurmehly’s work and the GOP headquarters, and personally left a copy of the

same letter at her home. (Zurmehly Dep., Doc. 35-1, PageID 350-351).

testified that he believed the information to be relevant to his concern that Zurmehly had

not reported all “gifts” under state ethics rules. Based on her view that the request

pertained exclusively to her Party role and was “not a county matter,” Zurmehly asked

Hicks not to send further emails to her Government email for matters that did not concern

Clermont County Treasurer business. (Doc. 35-1, PageID 340). Hicks sent at least two

more emails to Zurmehly’s Government email that related, at least in part, to Republican

Party matters. (Doc. 72 at PageID 950 (admitting “in part” that a March 26 email pertained

to a Republican Party meeting); Doc. 73, PageID 955 (admitting that April 6 email

pertained to Party matter)). But Hicks insists that the emails also relate to Zurmehly’s

fitness to serve in public office as Clermont County Treasurer.

Unhappy with Plaintiff’s continued use of her Government email, Zurmehly filed an

offense report with the Clermont County Sheriff’s Office on April 22, 2020. In her report,

Zurmehly provided copies of her requests to Hicks that he stop using her Government

email. She expressed her opinion that Hicks’ emails were sent “with the intent to harass,

threaten and intimidate her,” and her desire “to pursue charges of Telecommunications

Harassment on Mr. Hicks.” (Doc. 35-1, PageID 371). The Sheriff’s office contacted D.

Vincent Faris, the Clermont County Prosecutor at the time,4 who determined that his office

had a conflict of interest since Treasurer Zurmehly was a county employee.

Based on the conflict, Faris immediately sought the assistance of a special

prosecutor through the Ohio Attorney General’s Office. The OAG appointed a special

prosecutor on May 11, 2020. The special prosecutor tasked the Ohio Attorney General

Bureau of Criminal Investigation with the investigation. On August 18, 2020, a BCI Special

4Mr. Faris’s term as the Clermont County Prosecuting Attorney concluded January 3, 2021. Mark J. Tekulve

is the current elected Clermont County Prosecutor.

Agent interviewed Hicks at his residence about Zurmehly’s complaint that he had violated

§ 2917.21(A)(5) of Ohio’s Telecommunications Harassment statute.

Since 1972, Ohio has prohibited telephone harassment. Ohio Rev. Code §

2917.21(A)(4)(1972). In 1981, subsection (A)(5) was added to prohibit “knowingly”

making “a telephone call” to a recipient who “has previously told the caller not to call the

premises to which the telephone call is made.” Id. In 1999, the title of the statute was

changed to “Telecommunications [H]arassment,” and the word “telecommunication” was

substituted for “telephone call.”5 An initial violation of § 2917.21(A)(5) constitutes a

criminal misdemeanor in the first degree, but a subsequent violation is a fifth-degree

felony punishable by a fine up to $2,500.00 and imprisonment of between six and twelve

months. See § 2917.21(C)(2).

During the investigation, the BCI Special Agent allegedly told Hicks that the emails

represented “a pretty clear and simple case.” Less than two weeks after being

interviewed, on August 31, 2020, Plaintiff filed suit to challenge the threatened

enforcement of § 2917.21(A)(5).6

Two weeks after Hicks filed suit, on September 14, 2020, the OAG sent Hicks a

letter with the subject line: “Re: Clermont County Incident Report 2001403.” The letter

summarized the OAG’s review of Zurmehly’s report. In relevant part, the letter reads:

Ms. Zurmehly alleges that you have repeatedly used her government email

for private business in spite of her requests that you not do so.

Based on my review of the case file, you have contacted Ms. Zurmehly via

her county email to make requests that pertain to her role as Clermont

5Despite the substitution of the word “telecommunication,” § 2917.21(A)(5) continues to use the word

“caller.” See id., requiring the “recipient or another person at those premises” to have notified “the caller not

to make a telecommunication.”

6Plaintiff makes no claim that Zurmehly herself violated Plaintiff’s free speech rights. Compare Lindke v.

Freed, 601 U.S. 187 (2024).

County Republican Party Treasurer. This in spite of her emailing you

previously to “[p]lease do not use this email for any requests other than

County Treasurer business”.

. . .

Once Ms. Zurmehly asked you not to communicate with her via her

government email for nongovernment business, you were obliged to

comply. Each subsequent email constitutes a violation of R.C.

2917.21(A)(5).

The purpose of this communication is clarify these facts and the relevant

law. It is also to notify you that, upon review of the file and relevant law, it is

our decision to decline pursuing charges at this time. In future, please

refrain from using Ms. Zurmehly's government email for non-government

business. Our decision not to pursue charges at this time may be revisited

should new information come to light.

(Doc. 35-1, PageID 387-388).

To date, Hicks has never been charged for a violation of § 2917.21(A)(5) by either

the Clermont County Prosecutor or by the Ohio Attorney General. After filing suit, Plaintiff

continued to email Zurmehly at her Government email. At no time has he altered his

speech or conduct based on the events alleged in his Complaint. (Doc. 72, PageID 952).

IV. Analysis

Plaintiff broadly challenges the Defendants’ ability to apply §2917.21(A)(5) to

communications directed to a “public official using a publicly provided government email

address.” (Doc. 1 at PageID 12). Hicks maintains that §2917.21(A)(5) is facially vague

and overbroad because it could criminalize his and others’ First Amendment rights under

the U.S. Constitution to send core political communications or to petition their

representatives. In addition, he asserts that the statute is unconstitutional as applied

because Zurmehly and/or Defendants invoked it in a content-based manner to suppress

Plaintiff’s communications to Zurmehly’s Government email. In a second claim, Hicks

alleges that the statute is unconstitutional under the Ohio Constitution. Before addressing

the merits of Hicks’ claims, the undersigned confirms the existence of this Court’s

jurisdiction.

A. The Question of Justiciability

“Article III of the Constitution confines the jurisdiction of federal courts to ‘Cases’

and ‘Controversies.’” Food and Drug Administration v. Alliance for Hippocratic Medicine,

144 S.Ct. 1540, 1554, 602 U.S. 367, 378 (2024). Thus, to claim federal jurisdiction, a

plaintiff must have standing, defined as a “’personal stake’ in the dispute.” Id., (quoting

TransUnion LLC v. Ramirez, 594 U.S. 413, 423, 141 S.Ct. 2190 (2021)). To establish

standing, Hicks must show that he has “suffered an ‘injury in fact,’” that was caused by

“the conduct complained of,” and which “a favorable decision” is likely to redress. Kareem

v. Cuyahoga Cnty. Board of Elections, 95 F.4th 1019, 1022 (6th Cir. 2024) (quoting Lujan

v. Defs. Of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130 (1992) (additional citations

omitted)).

“An injury sufficient to satisfy Article III must be ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Susan B. Anthony List v. Driehaus,

134 S.Ct. 2334, 2341, 573 U.S. 149, 158 (2014) (quoting Lujan, 504 U.S. at 560, internal

quotation marks omitted). Both Defendants argue that Hicks cannot show standing in part

because he has never been charged with a violation of § 2917.21(A)(5). In addition, the

Clermont County Prosecutor argues that – whatever injury Hicks claims to have suffered

– it is not the cause.

1. Hicks Lacks Standing to Sue the Clermont County Prosecutor

The Clermont County Prosecutor is entitled to judgment as a matter of law based

on Hicks’ failure to demonstrate standing against that Defendant. In each case, a plaintiff

“‘must demonstrate standing for each claim’” asserted “against each defendant.” Murthy

v. Missouri, 144 S.Ct. 1972, 1988 (2024) (quoting TransUnion LLC v. Ramirez, 594 U.S.

413, 431, 141 S.Ct. 2190 (2021)).

Any individual can register a complaint with law enforcement authorities as

Zurmehly did in this case, but only a prosecuting attorney has the authority to investigate

and to initiate criminal charges under § 2917.21(A)(5). See Plunderbund Media, L.L.C v.

DeWine, 753 Fed. Appx. 362, 371 (6th Cir. 2018). When contacted by the Clermont

County Sheriff’s office about Zurmehly’s offense report, the County Prosecutor

immediately recognized its inherent conflict of interest, recused, and sought a referral to

a special prosecutor from the Ohio Attorney General’s office. It was the OAG, not the

Clermont County Prosecutor, that investigated Zurmehly’s allegations and ultimately sent

Hicks a letter concerning her complaint. So any injury that occurred based on Plaintiff’s

asserted threat of prosecution is not traceable to or caused by the County Prosecutor.

Not only has the Clermont County Prosecutor never initiated enforcement of §

2917.21(A)(5) for communications with a Clermont County official (Hicks’ alleged injury),

it would recuse on the same grounds for any future offending emails to a Clermont County

official.

Hicks protests, arguing that some future Clermont County Prosecutor might not be

as careful to screen out conflicts. (See Doc. 70, PageID 927). In addition, Hicks maintains

that the Clermont County Prosecutor could be involved in investigating a complaint by a

township or village official within the county’s jurisdiction, should Hicks send emails to

that official’s government email after receiving notice not to do so. But because Hicks

cannot show that the County Prosecutor caused his past injury, it is much harder for him

to make a showing that he faces a continued risk of future restriction traceable to that

same defendant. See Murthy v. Missouri, 144 S.Ct. at 1987. On the record presented,

Plaintiff’s hypothetical “what ifs” are too speculative to prove standing against the County

Prosecutor in this case.

2. Hicks Has Standing to Sue the Ohio Attorney General

a. Whether the OAG is a Proper Defendant

Hicks has less of a causation problem with the OAG. Still, the undersigned briefly

considers Hicks’ emphasis on Zurmehly’s conduct, as if she were the individual with

authority to file criminal charges against him. (See, e.g., Doc. 1, ¶3 (allegation that both

Zurmehly and the Defendants “chilled” his expression through “their [combined] selective

and threatened” prosecution); id., ¶ 4 (alleging a “credible threat of prosecution by

Treasurer Zurmehly or other similarly situated Clermont County public officials,” emphasis

added), Doc. 40, PageID 488 (testimony that “[W]e’re here …[b]ecause Jeannie Zurmehly

decided to try to have me arrested for having dared to send an email to her government

account.”). Despite Plaintiff’s emphasis on Zurmehly’s conduct, the OAG (not Zurmehly)

possesses the decision-making authority on whether to prosecute Hicks for violating

§2917.21(A)(5). Therefore, the OAG is a properly named Defendant.

b. Plaintiff’s Subjective Chill and Showing of Injury

Having confirmed that the OAG is a proper Defendant, the undersigned considers

whether Plaintiff can demonstrate that the OAG caused Hicks an injury-in-fact. Hicks

alleges injury premised on the possibility that he will be charged with a violation of §

2917.21(A)(5). “At the summary judgment stage, a plaintiff must allege ‘specific facts’ that

create a genuine dispute of material fact regarding each requirement of standing.”

Kareem, 95 F.4th at 1022.

To prove (or defeat) standing, both Defendants and Plaintiff lean heavily on

language in the OAG’s September 14, 2020 letter announcing the OAG’s “decision to

decline pursuing charges at this time.” For standing purposes, that is a mistake. To be

fair, the letter is highly relevant to the determination of whether Hicks has an ongoing

justiciable claim. But because the letter is dated after Plaintiff initiated suit, it cannot be

used to prove standing at the time Plaintiff filed his complaint. See Davis v. Fed. Election

Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759 (2008) (“[T]he standing inquiry remains

focused on whether the party invoking jurisdiction had the requisite stake in the outcome

when the suit was filed.”). So the undersigned sets aside the letter to focus on standing

as it existed at the moment the complaint was filed.

Hicks alleges standing to challenge § 2917.21(A)(5) based on a subjective “chill.”

But subjective chill caused by the mere existence of an allegedly unconstitutional statute

“without more” does not establish standing. See Laird v. Tatum, 408 U.S. 1, 10, 92 S. Ct.

2318, 2324 (1972) “Allegations 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,

92 S.Ct. at 2325-26. At the same time, actual charges or a conviction are not essential

for standing. “[W]hen fear of criminal prosecution under an allegedly unconstitutional

statute is not imaginary or wholly speculative a plaintiff need not ‘first expose himself to

actual arrest or prosecution to be entitled to challenge [the] statute.’” Babbitt v. United

Farm Workers Nat. Union, 99 S.Ct. 2301, 2310-11, 442 U.S. 289, 302 (1979) (quoting

Steffel v. Thompson, 415 U.S. 452, 459 (1974)).

To prove standing in a pre-enforcement case, Hicks may show a threat of specific

future harm. To do so, Hicks must show (1) he intends to engage in “expression that the

Free Speech Clause arguably protects,” (2) that his expression is “arguably proscribed”

by Ohio’s statute; and (3) that he faces a “credible threat of enforcement” for his intended

expression. See Fischer v. Thomas, 52 F.4th 303, 307 (6th Cir. 2022) (per curiam) (citing

Susan B. Anthony List v. Driehaus, 573 U.S. at 159). Here, Hicks satisfies the first two

elements. His emails “arguably” contained protected speech, and the BCI investigator’s

comments suggested that the emails were “arguably proscribed” by the Ohio statute.

But Hicks also must show a “credible threat of enforcement” at the moment his

complaint was filed. Under McKay v. Federspiel, 823 F.3d 862 (6th Cir 2016), that

“credible threat” is shown when a “subjective chill” is coupled with “some combination of

the following factors: (1) a history of past enforcement…; (2) enforcement warning

letters[;]…(3) an attribute of the challenged statute that makes enforcement easier or

more likely, such as a provision allowing any member of the public to initiate an

enforcement action” and/or (4) “a defendant's refusal to disavow enforcement of the

challenged statute against a particular plaintiff.” Id., 823 F.3d at 869. In more recent

cases, the Sixth Circuit has stressed that not each McKay factor needs to be established,

and that the list is not exhaustive. Kareem, 95 F.4th at 1023 (citing Online Merchs. Guild

v. Cameron, 995 F.3d 540, 550 (6th Cir. 2021)).

Before addressing the four listed McKay factors, the undersigned considers

Defendants’ view that Plaintiff loses based on evidence that disproves his allegations that

his speech has “already [been] substantially chilled,” (Doc. 1 ¶¶3, 29; see also id., ¶18,

alleging statute is being used by “hypersensitive public officials and prosecutors to chill

speech, and criminalize and prosecute individuals who speak out against and petition the

government….”). Defendants posit that McKay also requires objective evidence of

“subjective chill.”

But Hicks testified that he has never altered his speech in any way based on the

events alleged in his Complaint. (See also Doc. 72, PageID 952). The only thing he “did

differently was seek legal counsel” to file suit based on his belief that Zurmehly and others

were attempting (without success) to “chill my speech.” (Doc. 40, PageID 488). Plaintiff

freely admits he has not engaged in self-censorship, and has never limited emails sent to

Zurmehly at her Government email. Despite that lack of objective impact on the content

or mode of his expression, Hicks insists that he “feels” a chill based on knowledge that

he could be criminally charged. (Doc 1, ¶ 49). As for evidence, Hicks testified that “since

the BCI agent showed up” to interview him, his wife will “immediately get a video camera”

when the doorbell rings and that “we live in fear that we’re going to get arrested.” (Doc

40, PageID 489-490). And though he expressly denies having “refrain[ed] from speech”

in any way,7 he insists that he “liv[es] in fear” of a future arrest. (Doc. 40, PageID 491).

Are Defendants correct in asserting that “subjective chill” requires evidence of

some objective impact on behavior to prove a pre-enforcement claim? If so, must that

impact be on speech, such as self-censorship? Or does a subjective fear of arrest (and

7Hicks draws a distinction between being “afraid” of being arrested and having “fear” of exercising his First

Amendment rights. He cited to the “noble tradition of the First Amendment” as a basis for why he did not

“fear” continuing to speak out. (Doc. 40, PageID 498-499).

getting a camera ready when the doorbell rings) suffice? On this issue, the undersigned

finds in favor of Hicks.

The U.S. Constitution protects all Americans, including the meek, the brave and

the foolish. A plaintiff who seeks to challenge an unconstitutional law should not be

required to prove that a legitimate fear of imminent prosecution has driven him to self-

censorship. While a plaintiff who continues to freely exercise his First Amendment rights

may find it difficult to demonstrate a “specific present objective harm,” he still may

demonstrate standing through a showing of a “threat of specific future harm.” In other

words, the plaintiff who bravely or foolishly exercises his First Amendment rights

notwithstanding the likelihood of arrest and prosecution should be equally protected so

long as he has adequate proof of a “credible threat” of imminent prosecution. See also,

generally, Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821

(6th Cr. 2007) (to prove a First Amendment retaliation claim, a plaintiff need only show

that the defendant’s actions “would chill a person of ordinary fitness.”) (internal quotation

marks and additional citation omitted). So Hicks’ testimony that he subjectively “feels” a

chill is sufficient to establish standing if he combines that “subjective chill” with proof of a

“credible threat” under the four McKay factors.

Hicks cannot establish the first McKay factor, which considers the prior

enforcement of the same statute against plaintiff or others for similar conduct. Over the

four decades that §2917.21(A)(5) has been in existence, it has been enforced many

times. But to date, it has never been enforced either against Plaintiff or anyone else for

sending an email (or making a phone call or other form of telecommunication) to an

elected official at his or her public Government address.8 See, generally, Plunderbund

Media, 753 Fed. Appx.at 369 (rejecting pre-enforcement challenge to a different

provision, § 2917.21(B), where plaintiffs could not show any prior enforcement or

decisions dealing with political speech).

The second McKay factor concerns the existence of “warning letters.” At the time

the complaint was filed, the investigation had been ongoing for several months. In

addition, the BCI investigator told Hicks plainly that the case appeared to be “pretty clear

and simple.” The status of the ongoing investigation coupled with the investigator’s

remark, is sufficient to show that Hicks was constructively warned about the likelihood of

prosecution.

Under the third McKay factor, Hicks argues the challenged statute “makes

enforcement easier or more likely” because Zurmehly or any political enemy can “initiate”

an enforcement action by telling him not to email them again, and then following up with

a complaint to law enforcement if he does so. (See Doc. 40, PageID 487, testimony that

OAG’s decision to investigate was driven by Zurmehly’s complaint). However, in

Plunderbund, the Sixth Circuit rejected a similar claim that a political enemy might

“initiate” a false prosecution by filing a complaint with police. And the fact that any citizen

may file a complaint with law enforcement is not necessarily the same as a provision that

8Plaintiff points to evidence that, during the course of this lawsuit, two additional Clermont County

Republican Party members emailed Hicks requesting that he not email them and citing to Ohio Rev. Code

§2917.21(A)(5). But the referenced individuals “hold no elected or appointed public office and are not public

employees,” and “neither has a government assigned email address.” (Doc. 52, PageID 771). The potential

enforcement of § 2917.21(A)(5) against Hicks for emails addressed to private individuals at their respective

private email addresses does not bear on the First Amendment claims presented. (Id., PageID 770-72).

Another example cited by Hicks in a reply memorandum, (Doc. 63), is equally distinguishable because in

that case, the individual was charged not with violating § 2917.21(A)(5), but under a separate provision that

criminalizes knowingly posting a text or image on the internet “for the purpose of abuse, threatening, or

harassing another person.”

permits a member of the public to “initiate” an enforcement action. Only a prosecutor can

bring criminal charges. See id., 753 Fed. Appx. at 371.

On the other hand, the fact that a complained-of violation may result in criminal

prosecution rather than merely administrative or civil action is also significant. See

Kareem, 95 F.4th at 1025 (holding that “the threat of such [criminal] punishment

significantly heightens the risk of chilled expression.”). In Plunderbund, the plaintiffs’

allegations were wholly unsupported and “simply too ... highly conjectural to present a

threat of immediate injury, as the allegations rest[ ] on a string of actions the occurrence

of which is merely speculative.” Id., 753 Fed. Appx. at 371 (internal quotation marks and

additional citation omitted). Not so here. Unlike the shear conjecture in Plunderbund,

Zurmehly’s complaint led directly to the OAG’s investigation and subsequent letter

suggesting that the emails violated the statute. So Hicks’ evidence of “ease-of-

prosecution” is not as easily dismissed.

And Hicks can show the fourth McKay factor – a lack of disavowal of prosecution.

Again, when he filed his complaint the OAG’s investigation had been ongoing for more

than four months with no indication that the OAG would disavow enforcement. To the

contrary, the investigator’s comments strongly suggested that enforcement was “certainly

impending.” Friends of George's, Inc. v. Mulroy, 108 F.4th 431, 435 (6th Cir. 2024)

(quoting Crawford v. U.S. Dep't of the Treasury, 868 F.3d 438, 454 (6th Cir. 2017));

contrast Plunderbund Media, L.L.C v. DeWine, 753 Fed. Appx. at 372 (rejecting claim

where the defendants “expressly affirmed that the law in question does not reach political

expression.”).

So even if Hicks’ showing on ease-of-enforcement is discounted, Hicks still has

produced sufficient evidence to show a credible threat of imminent enforcement at the

time he filed his complaint. Therefore, Hicks has established standing. Accord Kareem,

95 F.4th at 1027 (finding no need to determine whether individual factors would be

sufficient to establish injury-in-fact where “combined…they contribute to a sufficiently

credible threat of enforcement.”).

3. Standing Versus Mootness

As stated, the parties rely heavily on their respective interpretations of the special

prosecutor’s September 14, 2020 letter to either support standing or to undermine it. But

neither the Sixth Circuit nor the Supreme Court have repudiated the notion that standing

is to be determined at the moment in time that the complaint was filed.9 Therefore, the

undersigned considers that evidence under the doctrine of mootness.

Mootness refers to the concept that “the issues presented are no longer ‘live’ or

the parties lack a legally cognizable interest in the outcome.” Graveline v. Benson, 992

F.3d 524, 533 (6th Cir. 2021) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.

1944 (1969)). Even when no party has raised the issue, a court, “may raise the question

of mootness sua sponte” in order to assure itself of jurisdiction. Fouts v. Warren City

Council, 97 F.4th 459, 464 (6th Cir. 2024) (citing Berger v. Cuyahoga Cnty. Bar Ass'n,

983 F.2d 718, 721 (6th Cir. 1993)).

Sometimes, events in the world overtake those in the courtroom, and a

complaining party manages to secure outside of litigation all the relief he

9In Memphis A. Philip Randolph Institute v. Hargett, 2 F.4th 548, 557 (6th Cir. 2021), the Sixth Circuit cited

several Supreme Court cases that imply that “in certain cases a plaintiff may have to maintain standing

throughout the lawsuit.” Id. Without resolving whether continued standing is required, the court resolved the

case on mootness, which “poses another Article III jurisdictional bar to plaintiffs’ claim.” Id., citing Arizonans

for Official English v. Arizona, 520 U.S. 43, 66–67, 117 S.Ct. 1055 (1997).

might have won in it. When that happens, a federal court must dismiss the

case as moot.

Federal Bureau of Investigation v. Fikre, 144 S.Ct. 771, 777, 601 U.S. 234, 240 (2024).

When Hicks filed his complaint, Zurmehly had reported the unwanted emails to the

Sheriff’s office, but no prosecutor had yet come to a conclusion that Hicks violated the

statute. Two weeks after Hicks filed suit, the OAG prosecutor to whom the matter had

been referred wrote to state he was “declin[ing] to pursu[e] charges at this time.” To this

day, Hicks has never been prosecuted. Given the 2-year statute of limitations, Defendants

argue that the passage of time coupled with the OAG’s letter means that Hicks no longer

can claim a “reasonable” fear of prosecution for the 2020 emails that he sent to

Zurmehly’s Government email.

But Plaintiff testified that he continues to send similar emails and that his fear of

imminent prosecution remains. (Doc. 40, PageID 496, 497-498). He points to language

in the OAG’s letter opining that Hicks’ continued use of Zurmehly’s “government email for

nongovernment business” after her request that he not do so “constitutes a violation of

R.C. 2917.21(A)(5).” The OAG ends the letter both with a request to “please refrain from

using Ms. Zurmehly’s government email for non-government business,” and an

admonition that the “decision not to pursue charges at this time may be revisited should

new information come to light.”

The Supreme Court’s recent decision in Federal Bureau of Investigation v. Fikre

confirms Plaintiff’s position. There, the plaintiff filed suit against the Federal Bureau of

investigation (“FBI”) alleging multiple violations of his procedural due process rights based

on his placement on a “No Fly List.” The plaintiff further alleged that the FBI had placed

him on the No Fly List for constitutionally impermissible reasons. Id. at 238-239. The

plaintiff had suffered significant injury that supported standing at the time he filed suit. But

the FBI argued that the suit had been rendered moot when: (1) the FBI subsequently

removed the plaintiff from the No Fly List; and (2) filed a declaration that the plaintiff “will

not be placed on the No Fly List in the future based on the currently available information.”

Id., 144 S.Ct. at 776, 601 U.S. at 240. The Supreme Court held that the declaration failed

to satisfy the government’s “formidable burden” to show that its alleged unconstitutional

conduct cannot “reasonably be expected to recur.” Fikre, 144 S.Ct. at 777, 601 U.S. at

241 (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528

U.S. 167, 189-190, 120 S.Ct. 693 (2000)).

The same reasoning applies here. Once Hicks proved standing at the outset of

litigation, the burden shifted to Defendants to show that the OAG’s post-suit letter renders

Hicks’ claims moot. But the OAG has never expressly disavowed the possibility of a future

prosecution based on the same conduct. By stating that Hicks’ prior emails violated the

statute and couching the OAG’s decision not to prosecute in the present tense “at this

time,” the OAG unmistakably leaves open the possibility of future prosecution. Adding to

that inference is the directive to “please refrain from using Ms. Zurmehly's government

email for non-government business” and pointed warning that the “decision not to pursue

charges … may be revisited should new information come to light.” As in Fikre, the OAG

has failed to carry its “formidable burden” to show that a future prosecution will not occur

if Plaintiff engages in the same or similar conduct in the future (sending unwanted emails

concerning certain topics to Zurmehly’s Government email). See id., 601 U.S. at 243;

accord Kareem, 95 F.4th at 1026 (reasoning that “a directive by an official can establish

a credible threat of enforcement because it ‘initiates the formal [enforcement] process,

which itself is chilling,’” quoting Speech First, Inc. v. Schlissel, 939 F.3d 756, 765 (6th Cir.

2019)).

B. Plaintiff’s Constitutional Claims

Plaintiff’s complaint sets forth two broad claims: (1) that § 2917.21(A)(5) is

unconstitutional under the First Amendment of the United States Constitution; and (2) that

the statutory provision is unconstitutional under the analogous provisions of the Ohio

Constitution. Defendants are entitled to judgment as a matter of law on the latter claim,

because there is no private right of action under the Ohio Constitution. See Hagedorn v.

Cattani, 715 Fed. Appx. 499, 509 (6th Cir. Nov. 17, 2017); Williams v. Nice, 58 F. Supp.3d

833, 839-40 (N.D. Ohio 2014).

Plaintiff’s claim that the statute is unconstitutional under the U.S. Constitution

requires further analysis. Within that single claim, Hicks mounts multiple attacks, including

but not limited to claims: (a) that the statute is facially overbroad; (b) that the statute is

facially vague; and (c) that the application of the statute to Hicks is unconstitutional “as

applied.” “The ‘usual judicial practice’ is to address an as-applied challenge before a facial

challenge because it generally will be more ‘efficien[t],’ because this sequencing

decreases the odds that facial attacks will be addressed ‘unnecessarily’ and because this

approach avoids encouraging ‘gratuitous wholesale attacks upon state and federal laws.’”

Connection Distrib. Co. v. Holder, 557 F.3d 321, 327-28 (6th Cir. 2009) (en banc) (quoting

Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028 (1989)).

Here, Hicks has proven that § 2917.21(A)(5) is unconstitutional “as applied.” However,

the undersigned does not recommend finding the statute to be facially unconstitutional.

1. Ohio’s Statute is Unconstitutional as Applied

Hicks has demonstrated that § 2917.21(A)(5) is unconstitutional as applied.

Specifically, the Defendant OAG may not criminalize - based on the recipient’s objection

to the content – Hicks’ sending of a small number of emails to a public official’s

Government email.10 Two factors are key to this conclusion: (1) the OAG seeks to apply

§ 2917.21(A)(5) against Hicks based solely on the content of his emails; and (2) the OAG

seeks to expand the use of a “harassment” law to shut down email communication from

a constituent to his elected official at her government email address that is not

threatening, abusive, intimidating or otherwise “harassing” in any traditional sense of the

word.

First, the content problem. Notably, in opposition to Plaintiff’s facial challenge, the

OAG repeatedly argues that the statute “is not content based.” (Doc. 41, PageID 572).

See State v. Gibbs, 134 Ohio App.3d 247, 730 N.E.2d 1027, 1030-31 (Ohio Ct. App. 12th

Dist. 1999) (holding that “the content of the [communication] is immaterial to whether [it]

constitutes harassment or not.”). In Hagedorn v. Cattani, 715 Fed. Appx. 499, the Sixth

Circuit concurred with that straightforward interpretation,11 noting that the Ohio courts had

previously “construed the statute ‘in a manner that permits the statute to operate lawfully

10Prior to technological advances, unwanted telephone calls or large quantities of spam emails had greater

potential to disrupt business operations. But here, Defendants cite to just four emails.

11It is not clear whether the Clermont County Prosecutor shares the OAG’s as-applied interpretation. Before

this Court, the County Prosecutor suggests that Hicks’ conduct in emailing Zurmehly at her Government

email did not violate § 2917.21(A)(5), because the statute categorically proscribes all telecommunications

to a recipient who “previously has told the caller not to make a telecommunication.” The County Prosecutor

states that Zurmehly did not fulfill the content-neutral condition precedent because she never told Hicks to

cease all communications to her Government email, but only requested that Hicks not to “use this email for

any requests other than County Treasurer business.” (See Doc. 42 at 9, arguing that “the allegations set

forth in the Complaint are not proscribed conduct under the telecommunications statute.”). Curiously (and

without explanation of the inconsistency with his motion for summary judgment and the September 14,

2020 letter) the OAG at one point agrees with the Clermont Prosecutor’s conclusion that Hicks could not

be prosecuted for § 2917.21(A)(5) because Zurmehly “never told Plaintiff not to contact the Clermont

County Treasurer’s Office….” (Doc. 58, PageID 836).

and constitutionally.’” Id. at 507 (citing Gibbs, 730 N.E.2d at 1030 (additional citations

omitted)).

But the OAG’s September 14, 2020 letter puts an unmistakable content-based

gloss on the application of § 2917.21(A)(5) to the emails at issue, declaring them as

violative of § 2917.21(A)(6) by reference to whether they concern “nongovernment

business,” as defined by Zurmehly and/or the OAG.

Once Ms. Zurmehly asked you not to communicate with her via her

government email for nongovernment business, you were obliged to

comply. Each subsequent email constitutes a violation of R.C.

2917.21(A)(5).

(Doc. 35-1, PageID 387). The letter not only states that each past email concerning

“nongovernment business” constitutes a criminal offense, but that emails containing

similar content could violate the statute in the future. (Id.)

So, “as applied,” the OAG’s threatened enforcement of § 2917.21(A)(5) against

Hicks is content-based. And therein lies the problem.

“[A]s a general matter, the First Amendment means that government has

no power to restrict expression because of its message, its ideas, its subject

matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S.

564, 573…(2002) (internal quotation marks omitted). As a result, the

Constitution “demands that content-based restrictions on speech be

presumed invalid ... and that the Government bear the burden of showing

their constitutionality.”

United States v. Alvarez, 132 S.Ct. 2537, 2543-44, 567 U.S. 709, 715-17 (2012) (quoting

Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660, 124 S.Ct. 2783 (2004));

accord Sammons v. McCarthy, 606 F.Supp.3d 165, 226 (D. Md. 2022) (ban directed at

plaintiff from emailing County officials based on plaintiff’s complaints about official was

content-based ban subject to strict scrutiny)..

The fact that the OAG is threatening to criminally charge Hicks for sending an email

to an official Government email address, as opposed to a private email address, provides

the second basis for the Court’s concern with the statute as applied. Defendants are quick

to point out that several Ohio courts have considered and rejected other constitutional

challenges. See, e.g., State v. Rettig, 1992 WL 19326 (Ohio Ct. App. 3rd Dist., Feb. 3,

1992) (upholding the conviction of a man who repeatedly telephoned his ex-girlfriend

against her wishes); State v. Gibbs, 134 Ohio App.3d 247, 730 N.E.2d 1027 (upholding

conviction of a woman who repeatedly called her ex-husband’s business number); State

v. Kronenberg, 2011-Ohio-1069, ¶ 16, 2011 WL 827580, at *2 (Ohio App. 8 Dist. 2011).

But the cases do not support applying the statute to a Government email that, by

all accounts, is regularly used Zurmehly and constituents alike to communicate about

matters of public concern and/or to petition the County Treasurer. See State v. Haas,

2021-Ohio-2864, ¶ 10, 2021 WL 3716724, at *2 (Ohio App. 6 Dist., Aug. 20, 2021)

(declining to reach constitutional challenge to sentence that included a “no contact”

provision with City staff and Maumee Court staff, where misdemeanor sentence was

agreed upon as part of plea negotiations that amended the charge from

telecommunication harassment to criminal mischief). And none of the Ohio cases support

the application of §2918.21(A)(5) based on a content restriction. In fact, the Ohio

Supreme Court has never addressed the constitutionality of §2917.21(A)(5) at all. And

the lower courts’ rejection of constitutional challenges have been grounded on two core

principles: (1) the statutory language is not based on content; and (2) the statute is

consistent with an individual’s right to be “let alone.” Both principles were established in

Rowan v. U.S. Post Office Dept., 397 U.S. 728, 90 S. Ct. 1484 (1970). Neither supports

the constitutional application of §2917.21(A)(5) to the facts presented here.

In Rowan, the Supreme Court rejected a constitutional challenge to a civil statute

that required the Postmaster General, upon receipt of a notice that an “addressee” had

received “pandering” advertisements,12 to prohibit all further commercial mail from the

same sender. In addition to concluding that a ban on all further commercial mail from the

sender was permissible because it did not require the Postmaster to evaluate content,

Rowan explicitly balanced the right to communicate that commercial speech against the

right of individual “householders” “to be let alone” in the privacy of their homes.13

Weighing the highly important right to communicate, but without trying to

determine where it fits into constitutional imperatives, against the very basic

right to be free from sights, sounds, and tangible matter we do not want, it

seems to us that a mailer's right to communicate must stop at the mailbox

of an unreceptive addressee.

The Court has traditionally respected the right of a householder to bar, by

order or notice, solicitors, hawkers, and peddlers from his property. … In

this case the mailer's right to communicate is circumscribed only by an

affirmative act of the addressee giving notice that he wishes no further

mailings from that mailer.

To hold less would tend to license a form of trespass and would make hardly

more sense than to say that a radio or television viewer may not twist the

dial to cut off an offensive or boring communication and thus bar its entering

his home. … The ancient concept that ‘a man's home is his castle’ into

which ‘not even the king may enter’ has lost none of its vitality, and none of

the recognized exceptions includes any right to communicate offensively

with another.

Rowan, 90 S.Ct. at 1490, 397 U.S. at 736-37.

12The statute was aimed at permitting a household member to reject mail from senders who had previously

mailed advertisements that he or she believed to be “erotically arousing or sexually provocative.” Rowan,

90 S.Ct. at 1487, 397 U.S. at 730.

13Like other Ohio cases, the Gibbs court expressly relied on Rowan and emphasized that the statute was

content-neutral. If the defendant brought up the distinction between Rowan’s dual emphasis on the

unwanted intrusion into a home versus a phone call to a public business; the court failed to mention it.

The Sixth Circuit’s unpublished decision in Hagedorn v. Cattani offers a somewhat

analogous fact pattern. There, a constituent had repeatedly emailed the mayor at his

personal email address after being instructed to send all emails to his government email.

Charged under §2917.21(A)(5), the constituent was acquitted after testifying that she

accidentally selected the wrong address from her phone. After acquittal, she promptly

filed a civil rights suit for First Amendment retaliation. The district court granted summary

judgment to the defendants, and the Sixth Circuit affirmed, holding that the individual

privacy interest in one’s home established in Rowan applied to a non-content based

restriction on email sent to a government official’s personal email account.

But Hagedorn draws a sharp distinction between a home (where Rowan’s privacy

interests are paramount) and an official’s government email address:

We refuse to adopt Hagedorn's position that the First Amendment allows

her an uninhibited right to communicate with Cattani through channels he

does not use in his official capacity as mayor simply because he is a public

official. In doing so, we are guided by the Supreme Court's decision in

Rowan v. U.S. Post Office Dept… Although we have been hesitant to

extend Rowan outside its “peculiar application to the home”… we find the

logic of the Court's decision applicable here. A personal email account is

the functional equivalent of a home mailbox. The state's interest in

protecting an individual's privacy carries equal weight in both situations. For

us to hold otherwise- and thus to endorse Hagedorn's conduct -“would tend

to license a form of trespass.” Rowan, 397 U.S. at 737, 90 S.Ct. 1484. In

the same way that Cattani could stop Hagedorn from entering onto his

property to share her views about his performance, he should also be able

to keep her from sending unwanted messages to a personal email address.

Additionally, we are considerably less concerned about infringing on

Hagedorn's First Amendment rights because she retains multiple channels

through which she can communicate with Cattani—including his official,

Village of Timberlake email address. We recognize her right to speak out

on a matter of public concern, but she does not have an uninhibited right to

do so to an official's private email account after he asks her to stop. Officials

like Cattani must be prepared to accept criticism and to be responsive to

the demands of their constituents, but they are not expected to open up

every aspect of their private lives for public access.

Furthermore, the implications of holding that Hagedorn could not be

prosecuted for telecommunications harassment are troubling. There would

be no recourse for public officials harassed at home, on a personal phone

line, or at a personal email account. What Ohio has done here, by

criminalizing the act of engaging in harassing communications regardless

of the content, provides an effective balance of these important privacy and

speech interests.

Hagedorn, 715 Fed. Appx. at 507-08. Despite being distinguishable on its facts, Hagedorn

implicitly supports Hicks’ position that extending §2917.21(A)(5) to a governmental email

address used for official communications may be unconstitutional.

As additional persuasive authority, Plaintiff directs this Court to cases outside this

circuit. For example, in United States Postal Serv. v. Hustler Mag., Inc., 630 F. Supp. 867

(D.D.C. 1986), the district court found unconstitutional “as applied” the same statute

previously upheld in Rowan. There, the Postmaster sought to enforce a ban on delivery

of a sexually explicit magazine to Congressional offices, where the sender asserted not

only his right to communicate but his right to petition the government. The court rejected

a proposed content-based restriction as unsupported by Rowan, and reasoned that the

sanctity of the home did not translate to an official’s office. “[O]nce [an elected official]

leaves home for the office, this privacy, this right to be let alone, significantly weakens

and in many situations is non-existent.” Hustler Magazine, Inc., 630 F. Supp. at 871. Like

the court in Hustler, the Sixth Circuit has resisted any expansion of Rowan’s privacy

interests beyond an individual’s home. See Anderson v. Spear, 356 F.3d 651, 661 (6th

Cir. 2004) (noting that it is “dubious at best that [the] so-called right to be left alone, which

under Rowan has peculiar application to the home, should be extended” to polling

places); see also Mirabella v. Villard, 853 F.3d 641, 654–55 (3rd Cir. 2017) (holding that

ban on plaintiffs’ ability to email township officials infringed on plaintiffs’ First Amendment

right to petition their government).

More recently in United States v. Sryniawski, 48 F.4th 583 (8th Cir. 2022), the

Eighth Circuit overturned a defendant’s conviction for cyberstalking based on emails sent

to a political candidate’s official campaign email address that were alleged to have been

sent with the intent to “harass [or] intimidate.” Id., 48 F.4th at 585. To survive the

defendant’s “as applied” constitutional challenge, the government was required to identify

“sufficient evidence for a jury to find that Sryniawski acted with intent to ‘harass’ or

‘intimidate’ in a sense that is not protected under the First Amendment.” Id. at 587. The

government was unable to make that showing, in large part because the offensive emails

were sent to the candidate’s official email. “[T]he cyberstalking statute cannot be applied

constitutionally to a defendant who directs speech on a matter of public concern to a

political candidate with intent merely to trouble or annoy the candidate.” Id.; accord State

v. Drahota, 788 N.W.2d 796, 805, 280 Neb. 627, 639-640 (Neb., 2010) (reversing

conviction based on provocative emails sent to political candidate after candidate

instructed defendant not to communicate; privacy interests endorsed in Rowan were

limited to commercial speech aimed at private citizens, not political speech directed to a

candidate for public office). In suggesting that § 2917.21(A)(5) can be broadly applied to

any “telecommunications” directed to Zurmehly’s Government email, the OAG cannot

stand on the privacy interests at the heart of Rowan. And no other authority suggests that

an elected official enjoys historic privacy interests in his or her official “address.”

Based on relevant and persuasive case law, the OAG’s threatened application of

§ 2917.21(A)(5) to Hicks’ emails is unconstitutional. The OAG’s content-based gloss on

the threatened prosecution, coupled with the application of § 2917.21(A)(5) to emails

directed to an official’s Government email, violates Hicks’ First Amendment rights. In so

concluding, the undersigned hastens to add that different facts could easily alter the

result. Other provisions of Ohio’s Telecommunications Harassment law criminalize

expression based on content more traditionally understood to be “harassment.”14

Whether those provisions could be constitutionally applied to ban a constituent’s abusive,

harassing, or threatening email to a government official is not before this Court. Cf.

Plunderbund Media, 753 Fed. Appx.at 369 (noting the lack of any prior application of §

2917.21(B)(2) to political speech). Nor does this Court consider whether Clermont County

could impose time, place and manner restrictions on the public’s use of its email system,

or how any such regulations or policies might be enforced. The sole issue before the

Court is whether a facially content-neutral criminal statute can be constitutionally applied

in a content-specific fashion to a constituent who emails his elected representative at her

Government email address about topics that she declares to be outside the scope of her

elected duties. To that narrow question, the answer is no.

Defendants offer several arguments in defense of content-based enforcement

against Hicks. None persuade. First, the OAG argues that Hicks’ speech constitutes

ordinary private speech, rather than the type of core political speech that is entitled to the

highest First Amendment protections. See Lichtenstein v. Hargett, 83 F.4th 575, 583 (6th

14Unlike §2918.21(A)(5), most sections of the Telecommunications Harassment statute contain terms more

closely associated with traditional notions of “harassment.” See, e.g., §2917.21(A)(1) (prohibiting

telecommunications made with the “purpose to harass, intimidate, or abuse”); §2917.21(A)(6) (barring

“telecommunication that is threatening, intimidating, menacing, coercive, or obscene with the intent to

abuse, threaten, or harass the recipient”); § 2917.21(A)(3) (barring telecommunication that constitutes

“Aggravated menacing”); § 2917(B)(2) (prohibiting internet posts “for the purpose of abusing, threatening,

or harassing another person.”). Other provisions concern telecommunications relating to sexual activity, or

expressing an intention “to cause damage to or destroy public or private property.” See §§ 2917.21(A)(2),

(A)(4).

Cir. 2023) (“[T]he First Amendment's protections reach their ‘zenith’ for political speech.”)

(quoting Meyer v. Grant, 486 U.S. 414, 425, 108 S.Ct. 1886 (1988)). But the OAG does

not address the fact that private speech is still protected under the First Amendment. And

Hicks disputes Defendants’ characterization, pointing to language wherein he relates

Zurmehly’s partisan activities to her fitness for public office.15

Certainly “political speech” may include criticism of an elected official’s private

behavior. And a dual purpose in speech does not negate the higher protection to which

political speech is due. See U.S. v. Popa, 187 F.3d 672, 678 (2d Cir. 1999) (finding federal

statute unconstitutional as applied where harassment conviction was based on arguably

political complaints that also contained unrelated offensive language, because the jury

was not permitted to consider Popa’s alleged intent “both to communicate his political

message and to annoy”); but see generally, Doherty v. City of Maryville, 431 Fed. Appx.

381, 388 (6th Cir. 2011) (“‘[T]he proper inquiry is not what might be incidentally conveyed

by the speech, and that passing or fleeting references to an arguably public matter do not

elevate the speech to a matter of public concern where the focus or point of the speech

advances only a private interest.’” (quoting Farhat v. Jopke, 370 F.3d 580, 592–93 (6th

Cir. 2004) (emphasis in original)). Ultimately, the undersigned finds no need to resolve

the parties’ dispute about whether the emails were ‘”private speech” or served a dual

15In the March 26 email chain, Hicks directly contests Zurmehly’s characterization of his prior email:

Your behavior in the capacity of GOP Clermont County Treasurer reflects directly on your

elective office. Your integrity is “official county business.” If you mislead and deceive in

party financial matters, openly lie (ex: about whether the Sheriff had agreed to pay $1k for

a mailing) and make false accusations it speaks to your character and integrity. So too

does making a false accusation about me in an open meeting (that I was lying about the

Sheriff not agreeing to pay). So too do your attempts to intimidate elected officials who

dare respond to questions I ask.

(Doc. 35-1, PageID 345).

purpose. Either way, the OAG fails to explain how a content-based gloss on

§2917.21(A)(5) is permissible.

Defendants offer two more arguments. First, the Clermont County Prosecutor

asserts that Zurmehly’s “Government email” is a type of public property (like a

government building, park, or sidewalk) that this Court should analyze under the “public

forum” paradigm. Applying that framework, the County Prosecutor suggests that the

content-based restriction to “government business” is reasonable despite its exclusion of

otherwise protected speech. Alternatively, both Defendants contend that the threatened

content-based application of §2917.21(A)(5) against Hicks is justified because Hicks’

speech falls into a rare category of speech that is wholly unprotected by the First

Amendment.

When applying public forum analysis, courts first determine whether the public

property in question is a traditional public forum, a designated public forum, or a nonpublic

forum. See Putnam Pit, Inc. v. City of Cookeville, Tenn., 221 F.3d 834, 842 (6th Cir. 2000).

The ability to restrict communication depends on the category in which the public property

is placed. Limiting expression in a traditional “public forum” like a street or a public park

is “sharply circumscribed,” as is restricting speech in a designated public forum. See Perry

Educ. Ass'n v. Perry Local Educators' Ass'n, 103 S.Ct. 948, 954, 460 U.S. 37, 45-46

(1983). By contrast, a government may reasonably restrict communications in a nonpublic

forum, defined as “[p]ublic property which is not by tradition or designation a forum for

public communication.” Id., 103 S.Ct. at 955, 450 U.S.at 45. For that category alone, “the

state may reserve the forum for its intended purposes, communicative or otherwise, as

long as the regulation on speech is reasonable and not an effort to suppress expression

merely because public officials oppose the speaker's view.” Id., 103 S.Ct. at 955, 460

U.S. at 46. The Clermont County Prosecutor maintains that Zurmehly’s Government

email is a nonpublic forum that may be restricted to use for Clermont County business

alone.

But the public forum analysis is a clumsy analytical tool that is inapposite to the

facts presented.16 At its heart, public forum analysis concerns communications conveyed

to a group, typically other members of the public. This case does not concern Hicks’

attempt to communicate to a larger group through a nonpublic system of “mail facilities”

like in Perry, or to the public through a government-run website like in Putnam Pit. Rather

than communication from one-to-many as would occur in the typical “public forum”

context, this case concerns one-to-one communication from a constituent to his elected

representative, like a single telephone call or letter in the mail.17 Hicks alternately

characterizes his emails as both “political speech” and as a “petition” to the Treasurer.

And rather than the typical public forum case involving a direct challenge to the forum’s

16Because the “public forum” paradigm does not apply, the undersigned finds no need to consider whether

the OAG’s enforcement of her content restriction on Hicks’ emails was viewpoint-neutral if Zurmehly’s email

is a nonpublic forum. That said, the construed narrowness of Zurmehly’s restriction to only “county treasurer

business” gives the undersigned some pause. (Doc. 35, PageID 220).

17The undersigned finds unpersuasive a handful of mostly unpublished decisions outside the Sixth Circuit

that have applied forum analysis to emails or email systems maintained by public universities or other

governmental organizations. See, e.g., Bruce v. Kelly, No. 20-4077-DDC-GEB, 2021 WL 4284534 (D.Kan.,

Sept. 21, 2021) (granting qualified immunity to defendant who blocked individual from sending emails to

state-owned email addresses where complaint did not allege email system was open to the public); Collins

v. West, No. 3:20-CV-6082-DWC, 2021 WL 4241317 (W.D. Wa. Aug. 24, 2021) (upholding as reasonable

restriction to specified government email); Bowen v. Goldstein, No. 07 Civ. 10997(RMB), 2007 WL

4457242, at *5 (S.D.N.Y., Dec. 13, 2007) (upholding right of public university to restrict use of email system).

See also, generally, Fla. Family Ass'n, Inc. v. School Bd. of Hillsborough Cnty., 494 F.Supp.2d 1311, 1322

(M.D.Fla 2007) (noting that the issue of public versus private forum status of email servers is “dicey” but

holding that even if email system created public forum, school was entitled to judgment on claim challenging

its decision to block email campaign of nonprofit family organization).

civil or administrative content restrictions,18 Hicks challenges the OAG’s application of a

criminal harassment statute to his emails.

Along with the Clermont County Prosecutor, the OAG offers one last defense of its

threatened application of § 2917.21(A)(5) to criminally enforce Zurmehly’s content-based

restrictions. Defendants assert that the State’s application of §2917.21(A)(5) against

Hicks is justified to prevent Zurmehly from being forced to commit a crime.19 Defendants

reason that Ohio Rev. Code § 9.03(D) prohibits the use of “public funds” by any individual

for the “benefit of … [a] political party … [or a] candidate.” A violation is a criminal

misdemeanor. See Ohio Rev. Code §3599.40. Because Zurmehly’s Government email is

government property, Zurmehly’s responses to Hicks’ emails might “benefit” the

Republican party and therefore violate § 9.03(D) - assuming Zurmehly possessed the

requisite mens rea to make her violation “knowing.” Going one step further, the OAG

argues that Hicks’ own emails constitute “speech integral to criminal conduct” that is

outside the scope of any First Amendment protection.

I disagree. In United States v. Alvarez, the Supreme Court reaffirmed the principle

that content-based restrictions on speech are limited to a few “historic and traditional

categories [of expression] long familiar to the bar.” Id., 132 S. Ct. at 2544, 567 U.S. at

717 (cleaned up, additional citations omitted). True, “speech integral to criminal conduct”

18Arguably, the public forum paradigm is also inappropriate because this case does not directly challenge

the County’s “viewpoint neutral regulations.” Up until the time that Zurmehly notified Hicks that she was

imposing a content restriction and sought the assistance of the Clermont County Sheriff and the OAG to

enforce that restriction through § 2917.21, no formal regulation existed. Zurmehly testified she has asked

other constituents to use a different email for business she deems unrelated to Clermont County duties, but

has not filed a criminal complaint against anyone other than Hicks.

19The Clermont County Treasurer, through a separately filed Amicus Memorandum, similarly argues that

Hicks’ speech is not protected by the First Amendment because it invited the County Treasurer to use her

public computer and email to communicate about her partisan political work on County time, which could

be prosecuted as a felony offense for “theft in office” or the “unauthorized use of property.” See Ohio Rev.

Code §§ 2921.41(A)(2) and 2913.04(A).

is on that list. See. Alvarez, 567 U.S. at 717 (citing Giboney v. Empire Storage & Ice Co.,

335 U.S. 490, 498 (1939)). But the OAG’s post-hoc rationalization is unpersuasive.20 In

the seminal case that established the “integral to criminal conduct” category, it was

undisputed that the speech at issue was intended, as its “sole immediate object,” to

compel a company to violate a valid Missouri criminal statute. See Giboney, 335 U.S. at

498. Like other categories of speech excluded from First Amendment protections, the

“criminal conduct” category has been narrowly construed. “To qualify as speech integral

to criminal conduct, the speech must be integral to conduct that constitutes another

offense that does not involve protected speech, such as antitrust conspiracy, [Giboney,

supra]…, extortion, …or in-person harassment.” United States v. Sryniawski, 48 F.4th

583, 588 (8th Cir. 2022) (additional citations omitted).

Here, Hicks’ transmission of the email did not itself violate § 9.03(D) and

Defendants have presented no evidence that Hicks’ sole intention was to induce

Zurmehly to violate § 9.03(D). To the contrary, Hicks insists that his emails sought

information for a dual purpose that included matters of public concern. And to state the

obvious, Zurmehly had no obligation to respond. See also Buchanan v. Crisler, 922

N.W.2d 886, 900, 323 Mich. App. 163, 188 (Mich. App. 2018) (discussing limitations on

speech “integral to criminal conduct” exception, holding that “cyberstalking laws may not

be used to restrict speech that relates to a public figure or matters of public concern”).

20The OAG’s September 14 letter gives no hint of intended enforcement of § 2917.21(A)(5) based on a

desire to prevent Hicks from forcing Zurmehly to use “public funds” for “political purposes,” but more broadly

suggests that Hicks will be prosecuted for sending any emails (partisan or not) deemed by Zurmehly to

relate to a “non-government” purposes.

2. Plaintiff’s Facial Challenges

In addition to his “as applied” challenge, Plaintiff argues on summary judgment that

this Court should declare §2919.21(A)(5) to be unconstitutional on its face because it is

overbroad, it is vague, and it amounts to a prior restraint on free speech. Plaintiff’s facial

challenges attack the future enforceability of the statute not against all persons in all

situations.

A facial challenge to a law's constitutionality is an effort “to invalidate the

law in each of its applications, to take the law off the books

completely.” Connection Distrib. Co. v. Holder, 557 F.3d 321, 335 (6th

Cir.2009) (en banc); see also Vill. of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 495, n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362

(1982) (“a ‘facial’ challenge ... means a claim that the law is ‘invalid in toto—

and therefore incapable of any valid application.’” (quoting Steffel v.

Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974))). In

contrast to an as-applied challenge, which argues that a law is

unconstitutional as enforced against the plaintiffs before the court, a facial

challenge “is not an attempt to invalidate the law in a discrete setting but an

effort ‘to leave nothing standing[.]’ ” Connection Distributing Co., 557 F.3d

at 335 (en banc) (quoting Warshak v. United States, 532 F.3d 521, 528 (6th

Cir.2008) (en banc)). Sustaining a facial attack to the constitutionality of a

state law, as the district court did, is momentous and consequential. It is an

“exceptional remedy.” Carey v. Wolnitzek, 614 F.3d 189, 201 (6th

Cir.2010).

Speet v. Schuette, 726 F.3d 867, 871-872 (6th Cir. 2013). In opposition to Plaintiff’s facial

challenges, Defendants reiterate their argument that the “Ohio courts have repeatedly

held” that the statute “is neither overbroad nor void for vagueness.” (Doc. 41, PageID

570).

A federal court is “bound by a state court's construction of a state statute,” such as

when a state supreme court interprets or defines specific terms or phrases. Wisconsin v.

Mitchell, 113 S.Ct. 2194, 2198, 508 U.S. 476, 483 (1993). But to date, the Ohio Supreme

Court has never defined specific terms or considered the constitutionality of §

2917.21(A)(5). And as previously discussed, the handful of lower state court decisions

that have considered constitutional challenges have rejected them almost exclusively

based on Rowan, a case that upheld the government’s right to restrict commercial speech

mailed to an individual’s home. Therefore, the undersigned rejects the Defendants’

invitation to blindly follow nonbinding Ohio decisions pronouncing the statute to be facially

constitutional.

a. The Statute is not Overbroad

To assess Hicks’ overbreadth challenge, the Court must discern what the statute

actually prohibits, and what it does not. See Speet, 726 F.3d at 873. On its face, the

statute states that

(A) No person shall knowingly make or cause to be made a

telecommunication, or knowingly permit a telecommunication to be made

from a telecommunications device under the person's control, to another, if

the caller does any of the following:

. . .

(5) Knowingly makes the telecommunication to the recipient of the

telecommunication, to another person at the premises to which the

telecommunication is made, or to those premises, and the recipient or

another person at those premises previously has told the caller not to

make a telecommunication to those premises or to any persons at those

premises…

Ohio Rev. Code § 2917.21. By its express terms, the statute is violated so long as the

State can establish that the defendant knowingly made a telecommunication to the

recipient, and that the recipient previously told the defendant not to do so.

The statute contains two exemptions from prosecution for certain members of the

press and for some debt collectors. Specifically, the statute exempts telecommunications

by “a person who, while employed or contracted by a newspaper, magazine, press

association, news agency, news wire service, cable channel or cable operator, or radio

or television station, is gathering, processing, transmitting, compiling, editing, or

disseminating information for the general public within the scope of the person's

employment in that capacity or the person's contractual authority in that capacity.”

§2917.21(F). The statute also immunizes a person who makes “a telecommunication to

a debtor that is in compliance with the ‘Fair Debt Collection Practices Act.’” § 2917.21(H).

But see State v. Pillar, 2012-Ohio-3926, ¶ 18, 2012 WL 3679569, at *3 (Ohio App. 5 Dist.,

Aug. 24, 2012) (holding that the law could be enforced against creditor whose efforts to

collect a commercial debt was not covered by the FDCPA).

Hicks has the burden to prove overbreadth by showing that the statute prohibits

“‘a substantial amount of protected speech both in an absolute sense and relative to [the

statute's] plainly legitimate sweep[.]’” Speet, 726 F.3d at 872 (quoting Carey v. Wolnitzek,

614 F.3d 189, 208 (6th Cir.2010) (additional citation omitted)); see also Americans for

Prosperity Foundation v. Bonta, 141 S.Ct. 2373, 2387, 594 U.S. 595, 615 (2021). “If the

law does not reach a substantial amount of constitutionally protected conduct, ‘then the

overbreadth challenge must fail.’” Speet, 726 F.3d at 873 (quoting Vill. of Hoffman Estates

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186 (1982)).

Attempting to carry that burden, Hicks argues that the statute is overbroad because

it potentially criminalizes both political speech and petitions for redress.21 He argues that

on its face, the statute permits prosecution of a constituent’s free speech or petitions

directed to an elected official’s governmental office or government email address, whether

21In his complaint, he includes other allegations of overbreadth, such as the failure of the statute to contain

any time limit, allowing an individual’s ban on such speech to be enforced in perpetuity. (See, e.g., Doc. 1,

¶52(A),(D), (H), (I)). Because Plaintiff does not develop these additional arguments in his memoranda, and

because there is no evidence that the long-standing statute has ever been so applied, the undersigned

does not consider them as advancing the argument that the statute substantially burdens protected speech.

transmitted by telephone, email, text, or through any other form of “telecommunication,”

so long as that official has previously directed the constituent not to further communicate.

The undersigned agrees that, hypothetically, the scope of §2917.21(A)(5) does extend to

those highly revered categories of protected speech. In addition, the undersigned has

concluded that the OAG cannot constitutionally apply § 2917.21(A)(5) to Hicks’ emails in

this case based on their content, regardless of whether the emails are considered to be

private speech, political speech, or petitions.

And yet, finding that the statute is unconstitutional as applied to Hicks, or that some

portion of protected speech might be proscribed, does not compel this Court to find that

Plaintiff has shown a “substantial” amount of protected speech is proscribed. See U.S. v.

Popa, 187 F.3d at 678 (vacating the defendant’s conviction because the statute was

unconstitutional as applied but expressly declining to consider facial challenge);

Sryniawski, 48 F.4th 583 (agreeing with defendant's “as applied” challenge but not striking

down statute); see also Hustler, supra (acknowledging that statute was facially

constitutional despite successful “as applied” challenge). “The concept of ‘substantial

overbreadth[]’ … has some elusive qualities.” Connection Distrib. Co., 557 F.3d at 340.

Substantial overbreadth involves not just an inquiry into the legitimate and

illegitimate sweep of a statute; it also involves an inquiry into the “absolute”

nature of a law's suppression of speech. Together, these questions require

as much in the way of judgment as they do a comparison between the

constitutional and unconstitutional applications of a law. Ultimately, the

critical question is this: Under what circumstances is it appropriate to

invalidate a law in all of its applications when its invalidity can be shown (or

assumed) in just some of its applications?

Id.

In Connection Distrib, Co., the Sixth Circuit declined to invalidate the challenged

statute in part because of the weakness of the plaintiffs’ showing. The court noted that in

“[o]ver twenty years and numerous administrations,” the statute had never been enforced

to criminalize even one area of protected speech, notwithstanding the argument that it

hypothetically could be so applied. Id. Like the statute in Connection Distrib. Co., §

2917.21(A)(5) has been enforced by the State of Ohio, in various iterations, for decades.

But never has the State actually applied it in the overbroad manner that Plaintiff suggests

- to a person communicating political speech or to someone sending some form of

telecommunication to their elected official’s government email, phone number or address.

See generally, Plunderbund, 753 Fed. Appx.at 369 (noting the lack of any prior application

of § 2917.21(B)(2) to political speech and the State’s explicit disavowal that it would

prosecute such speech under that provision).

The closest the State has ever come is the threat of enforcement against Hicks in

this case. But even then, the State did not threaten to proscribe all of Hicks’ political

speech and petitions to Zurmehly, but only a subset of emails deemed unrelated to

“Clermont County Treasurer” business. On the record before it, this Court is disinclined

to permit Hicks to “leverag[e]” that single unconstitutional application “into a ruling

invalidating the law in all of its applications.’” Speet, 726 F.3d at 878 (quoting Connection

Distrib. Co., 557 F.3d at 340).

In contrast to the “as applied” challenge, this Court also finds relevant that both

Ohio courts and the Sixth Circuit have uniformly rejected all prior constitutional

challenges, finding the statute constitutionally permissible under Rowan. On that note,

the Sixth Circuit’s analysis in Hagedorn is instructive.22 As discussed, Hagedorn involved

a content-neutral application of the statute to protect the privacy interests in an elected

official’s “home” email address, as opposed to his government email. Rejecting a

constitutional challenge, the court stressed that enforcement served the state’s “legitimate

interest in protecting citizens from unwanted intrusions into the privacy of their homes.”

Id., 715 Fed. Appx. at 507 (emphasis added, additional citation omitted). Thus, Hagedorn

understood that the statute’s plainly legitimate sweep under Ohio law was entirely

consistent with the constitutional limitations set forth in Rowan.23 Even though the

constitutional findings of Hagedorn and of Ohio’s lower courts are not binding, together

they represent Ohio’s significant historical record of entirely constitutional application.24

So, a bit like in Connection Distrib. Co., this Court is faced with comparing that historical

record to Hicks’ suggestion that the statute could encompass a “worst-case scenario that,

to our knowledge, has never occurred, that may never come to pass and that has not

been shown to involve a materially significant number of people.” Id. Exercising the

judgment that is required on the record presented, the undersigned finds insufficient

evidence to prove Hicks’ contention that § 2917.21(A)(5) is overbroad.

22The OAG refers to Hagedorn’s agreement with Ohio courts’ rejection of prior constitutional challenges,

including an overbreadth challenge, as “controlling.” (Doc. 58, PageID 833). Although unpublished Sixth

Circuit case law can be persuasive, only published Sixth Circuit authority is controlling.

23The OAG cites the same purpose. But in briefing, Defendants suggest additional purposes relating to

government efficiency (restricting the use of government emails to “government business”) and to prevent

officials from using public funds to respond to emails that relate to partisan or private concerns. As

discussed infra, the State’s use of § 2917.21(A)(5) to accomplish such objectives is questionable at best,

since the statute on its face is content-neutral and clearly not drafted with that purpose in mind.

24Not every state shares Ohio’s interpretation. See State v. Vaughn, 366 S.W.3d 513, 519 (Mo. 2012)

(striking down similar provision of statute as unconstitutional based in part on chilling effect on political

speech as well as everyday communications, rejecting broad expansion of Rowan’s recognized privacy

interests beyond the home and specific areas such as medical facilities).

b. The Statute is not Vague

The undersigned also rejects Hicks’ contention that the statute is overly vague,

finding the reasoning of the Ohio lower courts and of Hagedorn to be persuasive on this

issue. The statute is content-neutral on its face, and has been consistently applied in that

manner, in order to bar individuals from committing a type of “trespass” into the uniquely

private interests inherent in an individual’s home. See City of Delaware v. Boggs, 2018-

Ohio-4677, ¶ 14, 2018 WL 6075645, at *2 (Ohio App. 5 Dist. 2018); State v. Mollenkopf,

456 N.E.2d 1269, 1270, 8 Ohio App.3d 210, 210–11 (Ohio App. 11 Dist. 1982) (holding

that statute only requires proof that defendant called the complainant’s residence after

having been told not to call there).

c. The Court Declines to Review Hicks’ Prior Restraint Claim

Hicks alleged in his complaint that the statute was facially overbroad and vague,

and unconstitutional as applied. In his Motion for Summary Judgment, however, he adds

a new claim that §2917.21(A)(5) has the ability to act as a prior restraint on

constitutionally-protected expression. Because Plaintiff did not assert this claim in his

Complaint, the undersigned declines to address it. See Guiffre v. Local Lodge No. 1124,

No. 90–3540, 1991 WL 135576, at *5 (6th Cir. July 24, 1991) (unpublished); Tucker v.

Union of Needletrades, Indus., & Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005).

V. Conclusion and Recommendations

Accordingly, IT IS RECOMMENDED:

1. That Hicks’ motion for summary judgment (Doc. 57) should be GRANTED IN

PART but should be otherwise DENIED, as follows:

a. Because Ohio Rev. Code § 2917.21(A)(5) is unconstitutional as applied to

Hicks on the record presented, Hicks is entitled to declaratory and injunctive

relief against the OAG’s threatened enforcement;

b. Specifically, the OAG should be enjoined from enforcing § 2917.21(A)(5) in

a content-specific fashion to Hicks’ use of Zurmehly’s Government email for

topics that she declares to be outside the scope of her elected duties;

2. The Clermont County Prosecutor’s motion for summary judgment (Doc. 42)

should be GRANTED based on Hicks’ failure to demonstrate standing against

that Defendant;

3. The motion of the Ohio Attorney General for summary judgment (Doc. 41)

should be DENIED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHRISTOPHER HICKS,

Case No. 1:20-cv-680

Plaintiff,

McFarland, J.

v. Bowman, M.J.

D. VINCENT FARIS, et al.,

Defendants.

NOTICE

Under Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).