Ohio 'telecommunications harassment statute' appealed to US Court of Appeals for Sixth Circuit

House Bill 151 was sponsored by Republican State Representative Marlene Anielski of Walton Hills. Known as the "Cyberstalking and Harassment Legislation," the bill addresses "the use of technology growing rapidly every year, the tools available to offenders who wish to threaten or harass others is also growing.

Gov. John Kasich, seen here in 2011 

delivering his first and only State of the

State speech from the Ohio House, signed

HB 151 into law.

HB 151 is a step toward bringing state law up-to-date with today’s technology," a posting by the House Member says.

Lead attorney Eugene Volokh of the Scott & Cyan Banister First Amendment Clinic at the UCLA School of Law and Raymond V. Vasvari, Jr. of Vasvari/Zimmerman, an Ohio law firm, filed an appeal of "Plunderbund Media L.L.C., et al. v. Ohio Attorney General Mike DeWine, et al," in which I am one of three plaintiffs, challenging a key provision of HB 151 to the U.S. Court of Appeals for the Sixth Circuit.

The Honorable Sara Lioi, a judge for the United States District Court for the Northern District of Ohio, Eastern Division, ruled that plaintiffs Plunderbund media, a liberal Ohio blog, John Michael Spinelli, an independent blogger, and Tom Zawistowski, Chairman of the Portage County Tea Party, lacked standing to challenge Ohio Rev. Code § 2917.21(B)(2), on the grounds that Appellants suffered no injury in fact and there was no credible threat of prosecution, according to court documents filed Monday.

Plunderbund, Spinelli and Zawistowski were recruited by Volokh to challenge a provision of HB 151 that represents the constitutionality of a speech restriction that would "criminalize, in relevant part, 'knowingly post[ing] a text or audio statement or an image [online] for the purpose of abusing, threatening, or harassing another person.'”

All three appellants "fear their criticisms would be construed as intended to abuse or harass political figures, especially local prosecutors, they have limited their criticisms of such figures," plaintiff attorneys wrote.

The state, represented by AG DeWine, a Republican candidate for governor who hopes to succeed term-limited Gov. John Kasich this year, won its case to dismiss from a lower court based on plaintiff's lack of standing according to Article III standing criteria.

According to the filed document of appeal, "It is now a crime in Ohio to 'knowingly post a text or audio statement or an image on an internet web site . . . for the purpose of abusing or harassing another person,” un-less the speaker is within a favored list of exempted media entities. All three appellants do not meet media standards as defined by the bill, which covers only people who are speaking “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.”

Volokh argues that the First Amendment protects against the kind of "chilling effect" the bill imposes "by rendering overbroad statutes unconstitutional." Accordingly, Volokh says, "Courts invalidate [overbroad] statutes in their entirety to prevent a ‘chilling effect,’ whereby speakers self-censor protected speech to avoid the danger of possible prosecution.”

At the core of the case is the understanding that nothing in the bill, specifically § 2917.21(B)(2), excludes political speech, such as the speech in which Appellants seek to engage. Moreover, the bill has no exception for political expression, an activity that all three plaintiffs engage in on a regular basis.

Included in what it does, the bill prohibits a person from intentionally posting a message using written communication, like e-mail, Facebook or text message, or verbal graphic gestures to lead another to believe they are in danger.

“The bill brings our current laws on menacing and stalking up to date and will provide more peace of mind to the victims and families of those who have experienced these terrible situations,” Rep. Anielski said. Moreover, the bill expands the offense of “menacing by stalking” and telecommunications harassment and prohibits a person from knowingly causing someone to believe that the offender will cause physical or mental harm to that person’s family.

The bill was inspired by one of Rep. Anielski’s constituents, from Broadview Heights, who was a repeated victim of cyber stalking and harassment in the mid-2000s. At the time, local law enforcement was unable to assist due to the type of harassment was not specified in state law.