In a published decision on Wednesday, the Sixth Circuit affirmed an Ohio district court’s denial of a preliminary injunction against the state’s Judicial Code of Conduct in Ohio’s upcoming Supreme Court elections. Joseph Platt, a former Ohio Supreme Court candidate, sought an injunction against the Code’s prohibition on his openly endorsing other candidates, personally and directly soliciting campaign funds, and receiving campaign contributions outside of a limited time frame. Platt alleged that these regulations muzzled his First Amendment right to free speech, but only sought their injunction as applied to non-sitting judicial candidates.
The Sixth Circuit devoted a substantial part of its opinion to addressing the issue of Platt’s standing to bring the challenge, but determined with finality that he met Article III’s requirements to bring the suit. First, because Platt “claim[ed] an interest in engaging in protected speech,” because the threat of prosecution under the Code was credible, and because plaintiffs in this type of inquiry do not bear a heavy burden to show standing under the First Amendment, Platt could claim a “particularized injury.” Second, even though Platt had not filed the necessary follow-up forms to be a judicial candidate in the 2014 election (or even to be a write-in candidate), because his challenges were “capable of repetition yet evading review,” his case was not moot, and therefore the Court could consider the merits of the injunction.
In affirming the district court’s denial of the preliminary injunction, the panel clarified the Circuit’s standard of review for appeals of preliminary injunctions in First Amendment cases. Noting the mixture of abuse-of-discretion and de novo review that past Sixth Circuit decisions have applied to First Amendment preliminary injunctions, the Court reasoned that an appellate court reviews de novo a district court’s legal conclusions under the four-factor preliminary injunction test, but reviews the overall decision to grant or deny the injunction for abuse of discretion. In Platt’s case, the panel upheld the district court’s legal conclusions regarding the First Amendment, noting that “Ohio has compelling state interests” in enforcing the Code, and has “narrowed its Code to comport with” Sixth Circuit free speech precedent. Finally, because Platt is no longer actually running for office, the need for “expediency” demanded in preliminary injunction suits had largely ceased, and the public-interest factor did not tip in his favor.
Of course, the result of the panel’s decision is merely to allow Ohio’s judicial elections to proceed as normal. But it also allows Platt’s merits challenge to the Code to go forward in district court. Given recent developments in this area of free speech jurisprudence and the Supreme Court’s grant of certiorari in a similar case from Florida, it is worth watching this case both in Ohio and nationally.
