Ohio Criminal Harassment Statute Unconstitutional as to Certain Emails Sent to Government Official

So Magistrate Judge Stephanie Bowman concludes (correctly, I think) in her Report and Recommendation in today's Hicks v. Faris (S.D. Ohio):

Plaintiff Christopher R. Hicks is a self-described political watchdog and member of the Central and Executive Committee of the Clermont County Republican Party. 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 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)…. The undersigned finds that § 2917.21(A)(5) is unconstitutional as applied to Hicks….

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 {just four emails} to a public official's Government email. 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." In Hagedorn v. Cattani, the Sixth Circuit concurred with that straightforward interpretation, noting that the Ohio courts had previously "construed the statute 'in a manner that permits the statute to operate lawfully and constitutionally.'"

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).

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.

So, "as applied," the OAG's threatened enforcement of § 2917.21(A)(5) against Hicks is content-based…. Accord Sammons v. McCarthy (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. 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. 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. (1970). Neither supports the constitutional application of §2917.21(A)(5) to the facts presented here….

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 ….

As additional persuasive authority, Plaintiff directs this Court to cases outside this circuit. For example, in United States Postal Serv. v. Hustler Mag., Inc. (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." Like the court in Hustler, the Sixth Circuit has resisted any expansion of Rowan's privacy interests beyond an individual's home….

More recently in United States v. Sryniawski (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." 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." 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." Accord State v. Drahota (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." 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.

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. 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.

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 (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 (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.'"). Ultimately, the undersigned finds no need to resolve the parties' dispute about whether the emails were '"private speech" or served a dual 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…. But the public forum analysis is a clumsy analytical tool that is inapposite to the facts presented…. [R]ather than the typical public forum case involving a direct challenge to the forum's civil or administrative content restrictions, Hicks challenges the OAG's application of a criminal harassment statute to his emails….

Defendants [also] 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. 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. 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 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…. 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.

The court, however, declines to strike down the statute as facially overbroad, because it concluded that the law didn't reach a substantial amount of constitutionally protected conduct compared to its legitimate sweep. It also concludes that the law isn't unconstitutionally vague on its face: "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."

Jennifer Kinsley and Nicholas Owens represented Hicks on the motions, but Kinsley has since been elected to the Ohio Court of Appeals.