Ohio Harassment Statute Unconstitutional

A Clermont County Ohio Republic political operative recently convinced a Federal Court that Ohio's Telecommunications Harassment statute is unconstitutional, at least as applied to his case.  But the Court refused to throw out the statute entirely.

Plaintiff Christopher R. Hicks is a member of the Central and Executive Committee of the Clermont County Republican Party.  This case concerns email communications sent to 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 Hicks using 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).

Hicks argued that the statute was unconstitutional both "facially" and "as applied."  The Court agreed with him on the as applied challenge, but not on the facial challenge.

Since 1972, Ohio has prohibited telephone harassment under Revised Code 2917.21(A)(4). 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."  In 1999, the title of the statute was changed to "Telecommunications [H]arassment," and the word "telecommunication" was substituted for "telephone call."  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.

Mr. Hicks argued that the statute was unconstitutional as applied to his case, because the state sought to apply § 2917.21(A)(5) based solely on the content of Mr. Hicks' emails; and the state sought 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.  The Court agreed.  It noted first that the enforcement of the statute in this case was based on the content of the emails.  As it noted, "[the state] 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 . . . ."

The Court was also troubled by the fact that the email was a government email address used by a governmental official.  As the Court noted, "[the] cases do not support applying the statute to a Government email that, by all accounts, is regularly used by Zurmehly and constituents alike to communicate about matters of public concern and/or to petition the County Treasurer."  In short, it would not serve the interests of the First Amendment to allow an elected official to make the rules about what someone could talk about on an official account, and criminally prosecute people who failed to abide.

But the Court declined to find that the statute was "facially" unconstitutional.  In the Court's view, the statute did not violate the constitution in all circumstances.  In considering a facial challenge, the Court should strike down a statute that proscribes a substantial amount of protected speech.  Here, the Court found that the Ohio statute did not do so.  For evidence, the Court considered the history of the enforcement of the statute.  As it noted, "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 [Hicks] 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."  It continued, "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.'  Exercising the judgment that is required on the record presented, the [Court] finds insufficient evidence to prove Hicks' contention that § 2917.21(A)(5) is overbroad."

The ruling in this case is simple -- absent clearly harassing or threatening speech, an elected official shouldn't be able to prosecute an irritating constituent.