So Magistrate Judge Stephanie Bowman concludes (correctly, I think) in her Report and Recommendation in today’s Hicks v. Faris (S.D. Ohio):
Plaintiff Christopher R. Hicks is a self-described political watchdog and member of the Central and Executive Committee of the Clermont County Republican Party. This case concerns email communications sent to non-party 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 the use of 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)…. The undersigned finds that § 2917.21(A)(5) is unconstitutional as applied to Hicks….
Hicks has demonstrated that § 2917.21(A)(5) is unconstitutional as applied. Specifically, the Defendant OAG may not criminalize—based on the recipient’s objection to the content—Hicks’ sending of a small number of emails {just four emails} to a public official’s Government email. Two factors are key to this conclusion: (1) the OAG seeks to apply § 2917.21(A)(5) against Hicks based solely on the content of his emails; and (2) the OAG seeks 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.