Ohio News Media Association position on HC 1793, proposed amendment to HB 49 regarding powers of probate judges to sanction “interference” with park district purposes.
Upon a brief review, we see multiple constitutional problems with the proposed statutory language.
First, the term “interference” in Sections 1545.06(B)(1) and (B)(5) is unconstitutionally vague in that it does not give those who are subject to investigation, sanction and/or having an action brought against them under the statue fair notice of what is, or is not, “interference” with a park districts “purposes” or with an order creating the park district. See Columbus v. Meyer, 2003-Ohio-1270, ¶ 42 (quoting United States v. Harris, 347 U.S. 612, 617 (1954)) (“A law is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.”); Jones v. Caruso, 569 F. 3d 258, 276 (noting that a law is unconstitutionally vague if a reasonable person “must necessarily guess at its meaning and differ as to its application”).
Making this overbreadth and vagueness even more constitutionally suspect, the term “interference” is both broad and vague enough to impermissibly permit the sanctioning of picketing, campaigning and other speech activities that are plainly protected by both the Ohio and federal constitutions, and thereby allowing for actions to be taken against a person or entity based on impermissible content or viewpoint judgments. Leonardson v. City of East Lansing, 896 F.2d 190, 197 (6th Cir.1990) (finding law unconstitutionally vague where there was “nothing to prevent the use of the Ordinance prospectively against activities that are entitled to protection under the First Amendment”); State v. Conrad, 1997 WL 54668, at *3 (Ohio Ct. App. Jan. 17, 1997) (finding ordinance invalid where it was “overly broad” and “offend[ed] the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the areas of freedom protected by the First Amendment”).
The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) (explaining that “ ‘content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional.
Finally, the statute appears to give the Probate Court Judge unfettered discretion to determine what he or she considers to be “interference,” to then impose unlimited and undefined “duties or restrictions” on a person or entity. XXL of Ohio, Inc. v. City of Broadview Heights, 341 F. Supp. 2d 765, 805–06 (N.D. Ohio 2004) (quoting United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 359 (1998)) (“[A] statute or ordinance offends the First Amendment when it grants a public official unbridled discretion such that the official’s decision to limit speech is not constrained by objective criteria, but may rest on “ambiguous and subjective reasons.”); City of Cleveland v. Daher, 2000 WL 1844739, at *4 (Ohio Ct. App. Dec. 14, 2000) (“An ordinance is unconstitutionally vague if it . . . allows official discretion that leads to arbitrary or discriminatory enforcement.”).