Project Veritas v. Ohio Election Comm'n

Decision Date20 November 2019
Docket NumberCase No. 2:19-cv-3130
Citation418 F.Supp.3d 232
Parties PROJECT VERITAS, et al., Plaintiffs, v. OHIO ELECTION COMMISSION, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Maurice A. Thompson, Columbus, OH, Benjamin T, Barr, Statecraft PLLC, Chicago, IL, Curt Carl Hartman, Cincinnati, OH, for Plaintiffs.

Tiffany L. Carwile, Brandi R. Laser Seskes, Julie M. Pfeiffer, Ohio Attorney General's Office, Constitutional Offices Section, Columbus, OH, for Defendants.



This matter is before the Court for consideration of Plaintiffs' Motion for Preliminary Injunction (ECF No. 5), which alleges that Ohio Revised Code § 3517.21(A)(1) violates Plaintiffs' First Amendment rights. The Court held oral argument on Plaintiffs' Motion for Preliminary Injunction, which is now ripe for review. For the reasons that follow, the Court DENIES Plaintiffs' Motion for Preliminary Injunction.

a. Ohio Revised Code § 3517.21(A)(1)

Ohio Revised Code § 3517.21(A)(1) provides:

(A) No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
(1) Serve, or place another person to serve, as an agent or employee in the election campaign organization of a candidate for the purpose of acting to impede the conduct of the candidate's campaign for nomination or election or of reporting information to the employee's employer or the agent's principal without the knowledge of the candidate or the candidate's organization;

Violation of this provision is a first-degree misdemeanor punishable by up to six months imprisonment, a $5,000 fine, or both. Ohio Rev. Code §§ 3599.40, 3517.992(V). Before a prosecution may commence under the statute, however, a complaint must be filed with the Ohio Election Commission ("the Commission") and all administrative proceedings must be completed. Ohio Rev. Code §§ 3517.21(C), 3517.153(C). Established in 1974 and reformulated in 1995, the Commission is an independent agency consisting of seven members, six of whom are appointed by the governor on the recommendation of the combined state House and Senate caucuses of the major political parties. Three members are appointed from each of the two major political parties and the seventh is an unaffiliated elector appointed by the other six members. All members serve five-year terms. See Ohio Elections Commission History, available at (last visited November 15, 2019).

"Any person" may file a complaint with the Commission, by affidavit and made on personal knowledge and subject to the penalties for perjury, alleging a violation of the statute. Ohio Rev. Code § 3517.153(A). The secretary of state or an official at the board of elections may also file a complaint. Id.

Once a complaint is filed, the Commission proceeds with a statutory hearing procedure set forth in Ohio Revised Code § 3517.154 to § 3517.157. Ohio Rev. Code §§ 3517.21(C), 3517.153(C). If a complaint is filed within 60 days of a primary election or within 90 days of a general election, the Commission will hold an "expedited" probable cause hearing within two business days of determining such a hearing is necessary. Ohio Rev. Code §§ 3517.154(A)(2)(b), 3517.156(B)(1). A three-member panel decides whether there is probable cause to believe that "the failure to comply with or the violation of a law alleged in the complaint has occurred." Ohio Rev. Code § 3517.156(A), (C). If so, the panel must refer the case to the full Commission for an adjudicatory hearing to be held within ten days after the referral. Ohio Rev. Code § 3517.156(C)(2).

If an expedited hearing is not required, the Commission will hold a preliminary review hearing on the complaint, either by a probable cause panel or the full Commission. Ohio Admin. Code § 3517-1-11(A) ; (see also ECF No. 14-1, Richter Aff. ¶¶ 6-7.) The parties may submit briefs before the hearing and appear at the hearing to make arguments to the Commission, but are not required to do either. (Id. at ¶ 6). The Commission will not hear arguments, receive evidence, or take testimony unless the parties have stipulated to do so and a majority of the Commission members agree, or if any member wishes to request specific information that will aid in the proper determination of the matter at that stage. Ohio Admin. Code § 3517-1-11(A)(1). At this preliminary review stage, the body hearing the case reviews the pleadings, evidence, and motions before it in order to determine jurisdiction, sufficiency of the complaint, and whether probable cause exists for the full Commission to determine whether a violation has occurred. Ohio Admin. Code § 3517-1-11(A). If the review is held before a probable cause panel, the panel may dismiss the complaint or find sufficient probable cause exists that a violation occurred and recommend the Commission impose a penalty, refer the matter for prosecution, or find good cause exists to not impose a fine or refer the matter for prosecution. Id. If the preliminary review is before the full Commission, the Commission may take several actions, including setting the matter for a full hearing or making a final disposition by dismissing the case, imposing a penalty, referring the matter for prosecution, or finding good cause exists to not impose a fine or refer the matter for prosecution. Id.

The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev. Code § 3517.153(B). At the full adjudicatory hearing, the parties may present evidence and make opening and closing statements. Ohio Admin. Code § 3517-1-11(B)(2)(c), (d), (g). Within 30 days of the close of all the evidence, the Commission must determine whether a violation has occurred and do one of the following: refer the matter to the appropriate prosecutor, impose a fine, or find good cause exists to not impose a fine or refer the matter for prosecution. Ohio Rev. Code § 3517.155(A)(1), (C) ; see also Ohio Admin. Code § 3517-1-14(C). If the Commission decides not to impose a fine or refer the matter to a prosecutor, the Commission may still issue a public reprimand. See Ohio Admin. Code § 3517-1-14(D). Any finding of a violation of Ohio Revised § 3517.21(A) must be "by clear and convincing evidence." Ohio Rev. Code § 3517.155(D)(1). Any non-expedited adjudicatory hearing shall be held within 90 business days of the complaint being filed, unless the Commission finds there is good cause to hold a hearing after that time, in which case it will be held within 180 business days. Ohio Rev. Code § 3517.155(A)(1). If after dismissing a complaint the Commission determines the complaint is frivolous, the Commission shall order the complainant to pay reasonable attorney's fees and costs. Ohio Rev. Code § 3517.155(E). A party adversely affected by a final determination by the Commission may appeal to state court under Ohio Revised Code § 119.12. Ohio Rev. Code § 3517.157(D).

b. Project Veritas

Plaintiff Project Veritas Action Fund ("PVA") is a non-profit organization that engages in undercover journalism to report to the public about corruption, fraud, waste, and abuse. (Amend. Compl., ECF No. 4 at ¶ 5.) PVA "is not a political organization, does not take stances on controversial political topics, does not endorse, support, or oppose candidates for election, and spends its time, energy, and resources engaged in newsgathering and reporting." (Id. at ¶ 7.) PVA reports on public servants and candidates for public office. (Id. at ¶ 8.) Plaintiff Project Veritas ("PV") is a 501(c)(3) tax-exempt public charity that "investigate[s] and expose[s] corruption, dishonesty, self-dealing, waste, fraud, and other misconduct in both public and private institutions" by launching investigations through placement of its undercover journalists "followed by a rollout of facts displaying corruption." (Id. at ¶¶ 9-13.) PV reports on candidates and campaigns, but does not engage in activities or speech that urge the election or defeat of any candidate. (Id. at ¶ 14.) Plaintiff James O'Keefe is the founder and President of both PV and PVA. (Id. at ¶ 15.)

On October 1, 2018, a complaint was filed with the Commission by Ms. Lauren Windsor against PVA, James O'Keefe, and others. (Id. at ¶ 36.) Ms. Windsor's complaint alleged that PVA and the other named respondents violated Ohio Revised Code § 3517.21(A)(1) based on events that occurred during the 2016 election cycle. (Id. at ¶ 37) (citing Ex. B, ECF No. 1-1 at PAGEID#27-35.) That complaint alleged that PVA, led by Mr. O'Keefe, published a video that "feature[d] clips filmed surreptitiously by different operatives within the Grove City, OH coordinated campaign office of the Ohio Democratic Party for the Hillary Clinton and Ted Strickland campaigns, and within other locations." (Ex. B, ECF No. 1-1 at PAGEID#30.) Specifically, Ms. Windsor's complaint alleged that Mr. O'Keefe "placed at least two people in the election campaign organizations of two candidates for the purpose of reporting information to him, without the knowledge of the candidates." (Id. at PAGEID#31.) These two "operatives" allegedly infiltrated the coordinated campaign office of the Ohio Democratic Party for the Hillary Clinton and Ted Strickland campaigns as "volunteers" and recorded conversations with other campaign workers. (Id. at PAGEID#31-33.) According to Ms. Windsor's complaint, PVA, led by Mr. O'Keefe, then published a video in October 2016 that featured clips "filmed surreptitiously" by these two individuals. (Id. )

The day after Ms. Windsor's complaint was received, the Commission scheduled a preliminary review to be held on November 15, 2018. (Id. at PAGEID#28.) The letter setting the preliminary review requested a written response, either notarized or made by counsel. (Id. ) The letter...

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