Plunderbund Media v. Mike DeWine ( 2018 )


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  •                         NOT RECOMMENDED FOR PUBLICATION
    File Name: 18a0588n.06
    No. 18-3270
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    PLUNDERBUND              MEDIA,      L.L.C;     JOHN )                         FILED
    MICHAEL SPINELLI; and PORTAGE COUNTY )                                   Nov 27, 2018
    TEA PARTY, INC.,                                       )             DEBORAH S. HUNT, Clerk
    )
    Plaintiffs-Appellants,                        )
    )
    ON APPEAL FROM THE
    v.                                                     )
    UNITED STATES DISTRICT
    )
    COURT     FOR      THE
    MIKE DEWINE, in his official capacity as Ohio )
    NORTHERN DISTRICT OF
    Attorney General; VICTOR V. VIGLUICCI, in his )
    OHIO
    official capacity as the Prosecuting Attorney for )
    Portage County, Ohio; and RON O’BRIEN, in his )
    OPINION
    official capacity as the Prosecuting Attorney Franklin )
    County, Ohio,                                          )
    )
    Defendants-Appellees.                         )
    BEFORE:         MERRITT, DAUGHTREY, and STRANCH, Circuit Judges.
    JANE B. STRANCH, Circuit Judge. For decades, Ohio has prohibited making a
    “telecommunication . . . with purpose to abuse, threaten, or harass another person” under Ohio
    Rev. Code § 2917.21(B). In August 2016, a new section of the law went into effect that
    specifically prohibited posting on the internet “for the purpose of abusing, threatening or harassing
    another person.” Ohio Rev. Code § 2917.21(B)(2). Plaintiffs—online blog Plunderbund Media,
    blogger John Spinelli, and the nonprofit organization Portage County TEA Party—allege that the
    purpose requirements of § 2917.21(B)(2) and the preexisting telecommunications harassment
    section are unconstitutionally overbroad. Plaintiffs allege that because they do not fit a statutory
    No. 18-3270, Plunderbund Media, L.L.C., et al. v. Mike DeWine, et al.
    exemption for mainstream media entities, they face a credible threat of prosecution for their online
    articles and posts criticizing elected officials, including Defendants, Ohio Attorney General Mike
    DeWine, Portage County Prosecuting Attorney Victor Vigluicci, and Franklin County Prosecuting
    Attorney Ron O’Brien. Finding that Plaintiffs had not suffered any pre-enforcement injury-in-
    fact, the district court dismissed the case for lack of standing. For the reasons that follow, we
    AFFIRM.
    I.    BACKGROUND
    Plunderbund Media is an Ohio corporation that publishes an internet blog that focuses on
    Ohio and national politics and has used “humor and ridicule to make its rhetorical points” since at
    least 2013. (R. 1, ¶ 4, PageID 2.) Spinelli is a resident of Ohio who formerly blogged for
    Plunderbund and is now an independent blogger; he asserts that since 2006, he has written
    “thousands of articles” on online platforms that “could be considered abusive or harassing both by
    the subjects of [his] commentary and by county prosecutors.” (Id., ¶ 5, PageID 3; R. 2-4, PageID
    42.) Portage County TEA Party is an Ohio nonprofit political organization suing on behalf of its
    members, “political activists and commentators” who engage in political discussion online. (R. 1,
    ¶ 6, PageID 3.) Plaintiffs’ online posts routinely use “invective, ridicule and strong language
    intended to mock, lampoon or call into question the actions, motives and public policy positions
    of various figures,” including elected prosecutors such as DeWine, O’Brien, and Vigluicci. (Id.,
    ¶¶ 7–9, 14, PageID 3–4.)
    In April 2016, the Ohio legislature passed a law updating the state’s longstanding
    telecommunications harassment statute, Ohio Rev. Code § 2917.21(B), to provide:
    No person shall knowingly post a text or audio statement or an image on an internet
    web site or web page for the purpose of abusing, threatening, or harassing another
    person.
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    Id. § 2917.21(B)(2).
    This section, which we refer to as the cyber-harassment statute, became
    effective August 16, 2016. The older telecommunications harassment section was renumbered as
    § 2917.21(B)(1) and provides, as it has since 1999:
    No person shall make or cause to be made a telecommunication, or permit a
    telecommunication to be made from a telecommunications device under the
    person’s control, with purpose to abuse, threaten, or harass another person.
    
    Id. § 2917.21(B)(1).
    “Telecommunication” is defined as “the origination, emission, dissemination,
    transmission, or reception of data, images, signals, sounds, or other intelligence or equivalence of
    intelligence of any nature over any communications system by any method, including, but not
    limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.” 
    Id. § 2913.01(X).
    Neither §§ 2917.21(B)(1) nor (B)(2) applies to employees or contractors of a “newspaper,
    magazine, press association, news agency, news wire service, cable channel or cable operator, or
    radio or television station,” under the so-called mainstream media exemption. 
    Id. § 2917.21(F).
    Violating either section results in a first degree misdemeanor on a first offense, punishable by a
    fine of up to $1,000 and imprisonment of no more than six months, and a fifth degree felony on
    each subsequent offense, punishable by a fine of up to $2,500 and imprisonment of between six
    and twelve months. 
    Id. § 2917.21(C)(1).
    On May 16, 2017, Plaintiffs filed a complaint challenging § 2917.21(B)(2) under the First
    and Fourteenth Amendments, along with a motion for a preliminary injunction. Plaintiffs allege
    that the prohibition against posting with abusive or harassing purpose is overbroad, though they
    do not challenge the prohibition on posting with threatening purpose. Plaintiffs also challenge the
    constitutionality of the matching “purpose” provision of the older telecommunications harassment
    statute, § 2917.21(B)(1), to the extent it prohibits abusing and harassing speech “said to the public
    about a person, rather than directly to the person.” (R.1, ¶ 3, PageID 2.) Although both counts of
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    Plaintiffs’ complaint refer only to § 2917.21(B)(2), the prayer for relief includes both
    §§ 2917.21(B)(1) and (B)(2). Plaintiffs request: Count One, a declaration that § 2917.21(B)(2) is
    overbroad in violation of the First and Fourteenth Amendments, and Count Two, a grant of
    injunctive relief preventing Defendants DeWine, O’Brien, and Vigluicci, in their official
    capacities, from enforcing the abuse and harassment components of the statute. Plaintiffs assert
    that they do not qualify for the mainstream media exception and thus fear criminal prosecution
    “should police or prosecutors believe their posts were written with the purpose of abuse or
    harassment.” (Id., ¶¶ 15, 19, PageID 5.) While Plaintiffs do not allege that they seek to violate
    the law by posting online with the purpose to abuse or harass, they believe that under Ohio law,
    their “public criticism of government officials could, under the contested statute, be subject to
    criminal prosecution and punishment if they are seen as intended ‘to mistreat’ or to persistently
    annoy.” (Id., ¶ 26, PageID 7.)
    Defendants moved to dismiss the action under Federal Rule of Civil Procedure 12(b)(1)
    for lack of standing and under Rule 12(b)(6) for failure to state a claim. The district court granted
    the motion under Rule 12(b)(1), finding Plaintiffs did not establish an injury-in-fact and thus did
    not have standing to challenge the statute.
    II.    ANALYSIS
    “A determination of a party’s standing to maintain an action is a question of law that this
    court reviews de novo.” Greater Cincinnati Coal. for the Homeless v. City of Cincinnati, 
    56 F.3d 710
    , 715 (6th Cir. 1995). Because Plaintiffs’ “suit was dismissed at the pleading stage, we must
    accept as true all material factual allegations of the complaint” and construe them in Plaintiffs’
    favor. Glenn v. Holder, 
    690 F.3d 417
    , 420 (6th Cir. 2012) (quoting White v. United States, 
    601 F.3d 545
    , 551 (6th Cir. 2010)).
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    A. Standing
    Article III of the United States Constitution limits the jurisdiction of federal courts to
    certain “Cases” and “Controversies.” U.S. Const. art. 3, § 2. The standing doctrine “gives meaning
    to these constitutional limits by ‘identif[ying] those disputes which are appropriately resolved
    through the judicial process.’” Susan B. Anthony List v. Driehaus (SBA List), 
    134 S. Ct. 2334
    ,
    2341 (2014) (quoting Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992)). Plaintiffs must
    show that they have suffered “an ‘injury in fact’ that is ‘fairly traceable to the challenged action of
    the defendant’ and is capable of being ‘redressed’ by the court.” McKay v. Federspiel, 
    823 F.3d 862
    , 867 (6th Cir. 2016) (quoting 
    Lujan, 504 U.S. at 560
    –61), cert. denied, 
    137 S. Ct. 1229
    (2017).
    The issue on appeal is whether Plaintiffs have shown an injury-in-fact.
    Plaintiffs have not been charged with violating § 2917.21(B)(2) and instead seek injunctive
    relief through “a pre-enforcement challenge[, which] may be made before the actual completion
    of an injury in fact.” Grendell v. Ohio Supreme Court, 
    252 F.3d 828
    , 832 (6th Cir. 2001). “To
    establish standing for a free-speech claim, the Plaintiffs generally must show that ‘the rule, policy
    or law in question has explicitly prohibited or proscribed conduct on the[ir] part.’” Phillips v.
    DeWine, 
    841 F.3d 405
    , 415 (6th Cir. 2016) (quoting Parsons v. U.S. Dep’t of Justice, 
    801 F.3d 701
    , 711 (6th Cir. 2015)), cert. denied sub nom. Tibbetts v. DeWine, 
    138 S. Ct. 301
    (2017).
    Plaintiffs must also show that the “threatened injury is ‘certainly impending,’ or there is a
    ‘substantial risk’ that the harm will occur.” SBA 
    List, 134 S. Ct. at 2341
    (quoting Clapper v.
    Amnesty Int’l USA, 
    568 U.S. 398
    , 414 n.5 (2013)). Thus, in the pre-enforcement context, “a
    plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a course
    of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there
    exists a credible threat of prosecution thereunder.’” 
    Id. at 2342
    (quoting Babbitt v. United Farm
    Workers Nat’l Union, 
    442 U.S. 289
    , 298 (1979)).
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    Assuming without deciding that Plaintiffs have alleged an intention to engage in
    constitutionally protected conduct arguably proscribed by § 2917.21(B)(2), we examine whether
    Plaintiffs sufficiently alleged a credible threat of prosecution that is “not conjectural or
    hypothetical.” 
    Lujan, 504 U.S. at 560
    (internal quotation marks omitted). Plaintiffs need only
    support their claim of a credible threat of prosecution with general factual allegations, “for on a
    motion to dismiss we presum[e] that general allegations embrace those specific facts that are
    necessary to support the claim.’” 
    White, 601 F.3d at 551
    (quoting 
    Lujan, 504 U.S. at 561
    ). Upon
    a motion to dismiss for lack of subject matter jurisdiction, the trial court may also allow or require
    “the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized
    allegations of fact deemed supportive of plaintiff’s standing.” Warth v. Seldin, 
    422 U.S. 490
    , 501
    (1975). Thereafter, the motion to dismiss should be granted if “plaintiff’s standing does not
    adequately appear from all materials of record.” 
    Id. at 502.
    In determining that Plaintiffs did not
    establish an injury-in-fact, the district court examined Plaintiffs’ declarations supporting their
    motion for a preliminary injunction and both parties’ briefing on Defendants’ motion to dismiss.
    We now turn to the record to determine whether a credible threat of prosecution exists. See 
    id. 1. Credible
    Threat of Prosecution
    “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to
    be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”
    SBA 
    List, 134 S. Ct. at 2342
    (quoting Steffel v. Thompson, 
    415 U.S. 452
    , 459 (1974)). However,
    in the free speech context, where “some other indication of imminent enforcement” is lacking,
    “mere allegations of a ‘subjective chill’ on protected speech are insufficient to establish an injury-
    in-fact for pre-enforcement standing purposes.” 
    McKay, 823 F.3d at 868
    –69 (quoting Berry v.
    Schmitt, 
    688 F.3d 290
    , 296 (6th Cir. 2012)). Thus, when plaintiffs rely on allegations of subjective
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    chill, they must also “point to some combination of the following factors” to show the potential of
    enforcement:
    (1) a history of past enforcement against the plaintiffs or others, see, e.g., Russell v.
    Lundergan-Grimes, 
    784 F.3d 1037
    , 1049 (6th Cir. 2015); (2) enforcement warning
    letters sent to the plaintiffs regarding their specific conduct, see, e.g., Kiser v. Reitz,
    
    765 F.3d 601
    , 608–09 (6th Cir. 2014); 
    Berry, 688 F.3d at 297
    ; and/or (3) an attribute
    of the challenged statute that makes enforcement easier or more likely, such as a
    provision allowing any member of the public to initiate an enforcement action, see
    Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court,
    
    769 F.3d 447
    , 452 (6th Cir. 2014).
    
    Id. at 869.
    We may also take “into consideration a defendant’s refusal to disavow enforcement of
    the challenged statute against a particular plaintiff.” Id.; see also 
    Platt, 769 F.3d at 452
    , 
    Kiser, 765 F.3d at 609
    .
    Plaintiffs pled that they reasonably fear prosecution under § 2917.21(B)(2) and, as a result,
    have been subjectively chilled regarding the content of their publications. We therefore examine
    the McKay factors relevant here: a history of past enforcement, an attribute of the statute that
    makes enforcement easier or more likely, and evidence of intention to enforce.
    a. History of Enforcement
    “A threat of future enforcement may be ‘credible’ when the same conduct has drawn
    enforcement actions or threats of enforcement in the past.” 
    Kiser, 765 F.3d at 609
    . The Supreme
    Court’s decision in SBA List grew out of a challenge to an Ohio prohibition on knowingly or
    recklessly making false statements about a candidate during a 
    campaign. 134 S. Ct. at 2338
    . The
    plaintiffs’ pleadings described the specific campaign statements plaintiffs intended to make. 
    Id. at 2343.
    Noting that the Ohio Elections Commission had “already found probable cause to believe
    that [one plaintiff] violated the statute” by making “the same sort of statement,” the Court
    concluded that “there is every reason to think that similar speech in the future will result in similar
    proceedings, notwithstanding [plaintiff’s] belief in the truth of its allegations.” 
    Id. at 2345.
    The
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    Court held that the plaintiffs faced a credible fear of prosecution based on the history of
    enforcement. 
    Id. Analogously, this
    court found that a dentist challenging a state dental board
    regulation sufficiently alleged a credible threat of prosecution because he specifically pled that he
    intended to advertise his practice in a manner that the dental board had already warned him may
    violate the regulation. 
    Kiser, 765 F.3d at 605
    , 609.1 We found “harm sufficient to justify pre-
    enforcement review” because the dental board had sent the plaintiff two letters warning that he
    was in violation of the regulations. 
    Id. at 609
    (quoting SBA 
    List, 134 S. Ct. at 2345
    ). The letters,
    we concluded, “may fairly be read to threaten implicitly enforcement of the regulations.” 
    Id. We first
    ask whether Plaintiffs themselves have received comparable threats of
    prosecution. Plaintiffs describe many years of posting political articles and comments online but
    do not allege that the recently enacted cyber-harassment law, § 2917.21(B)(2), has ever been
    enforced, or threatened to be enforced, against them. Plunderbund has published articles critical
    of DeWine and other public officials since at least 2013. Spinelli avers that since 2006, he has
    written “thousands of stories” about elected officials, including county prosecutors, that “could be
    considered abusive or harassing.” (R. 2-4, PageID 42.) The executive director of Portage County
    TEA Party, Tom Zawistowski, declared that the organization has “repeatedly characterized the
    Ohio Republican Party as . . . ‘a money laundering organization’ . . . [that uses] ‘Mafia like tactics
    to control elections and raise money.’” (R. 2-2, PageID 36.) Zawistowski also asserted that he
    broadcasts “highly critical” opinions on a radio show he hosts. (Id.) Yet, since § 2917.21(B)(2)
    came into effect in August 2016, no Plaintiff has faced prosecution or threats of prosecution under
    the new subsection.
    1
    After the dental board revoked the contested regulation in 2016, the district court dismissed the case as moot. We
    affirmed. Kiser v. Kamdar, No. 17-4041, 
    2018 WL 4958492
    , at *1–*3 (6th Cir. Oct. 15, 2018).
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    We also consider whether the longstanding telecommunications harassment law,
    § 2917.21(B)(1), has ever been enforced against Plaintiffs. That history is relevant to Plaintiffs’
    pre-enforcement challenge to § 2917.21(B)(2) because the statute has been in effect for decades,
    encompasses online posts, and has a “purpose” requirement nearly identical to that of
    § 2917.21(B)(2). The telecommunications harassment statute—then numbered § 2917.21(B)—
    initially prohibited telephone calls made “with purpose to harass” and “without purpose of
    legitimate communication.” Ohio Rev. Code § 2917.21(B) (1972). The statute was amended in
    1981 to read, “No person shall make or cause to be made a telephone call . . . with purpose to
    abuse, threaten, annoy, or harass another person.” 
    Id. § 2917.21(B)
    (1981). Finally, the 1999
    version of the law dropped the word “annoy” and substituted for “telephone call” the much broader
    term “telecommunication.” 
    Id. §§ 2917.21(B)
    (1999), 2917.21(G)(3), 2913.01(X). Since at least
    2008, Ohio courts have found that definition of telecommunication to encompass posts on the
    internet. See State v. Klingel, 
    88 N.E.3d 455
    , 462–63 (Ohio Ct. App. 2017) (finding that a post on
    the social media website Facebook is a telecommunication); State v. Dundics, 
    62 N.E.3d 1013
    ,
    1014–15 (Ohio Ct. App. 2016) (same); State v. Ellison, 
    900 N.E.2d 228
    , 229–30 (Ohio Ct. App.
    2008) (finding that a post on the social media website MySpace is a telecommunication). Because
    § 2917.21(B) and § 2917.21(B)(2) include the same prohibition, a history of prosecution or lack
    of prosecution under the former statutory provision is relevant.
    Plaintiffs’ many years of online posts and Zawistowski’s radio comments would have
    “expose[d] them to prosecution and/or the threat of prosecution” under the prior statute. (R. 1,
    ¶ 16, PageID 5.) But Plaintiffs do not allege a history of prosecution for telecommunications
    harassment. Spinelli alleges one instance of political retaliation when he was denied access to
    Ohio Governor John Kasich’s 2014 State of the State address in part because he was a blogger for
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    Plunderbund. But denial of a press pass to a political event does not rise to the level of a criminal
    prosecution under the telecommunications harassment statute.             Spinelli, moreover, has not
    plausibly alleged that the denial was premised on § 2917.21(B) such that it “may fairly be read to
    threaten implicitly enforcement of the regulations.” 
    Kiser, 765 F.3d at 609
    . Instead of providing
    examples of threats of prosecution, Plaintiffs speculate that “even public criticisms of government
    officials could, under the contested statute, be subject to criminal prosecution and punishment if
    they are seen as intended ‘to mistreat’ or to persistently annoy.” (R. 1, ¶ 26, PageID 7.) Plaintiffs
    have made no factual allegations supporting that conclusion. Because “there is every reason to
    think that similar speech in the future will result in similar proceedings,” and Plaintiffs have never
    been prosecuted for their critical articles and posts, Plaintiffs’ future posts are unlikely to result in
    prosecution under the challenged statutes. SBA 
    List, 134 S. Ct. at 2345
    .
    This McKay factor also looks to a history of enforcement—of either subsection—against
    other speakers. “[P]ast enforcement [of a statute] against the same conduct is good evidence that
    the threat of enforcement is not chimerical.” 
    Russell, 784 F.3d at 1049
    (6th Cir. 2015) (quoting
    SBA 
    List, 134 S. Ct. at 2345
    ). Plaintiffs do not point to a single case where an entity or individual
    posting a political opinion or article online was prosecuted for telecommunications harassment or
    cyber-harassment. In fact, Plaintiffs acknowledge that “no Ohio appellate decisions dealing with
    § 2917.21 have dealt with political speech.” (R. 20, PageID 126.) Plaintiffs instead rely on one
    case where a speaker was prosecuted under a different section of the telecommunications
    harassment statute for speech directed at a public official. See Hagedorn v. Cattani, 715 F. App’x
    499, 502 (6th Cir. 2017). That section prohibits unwanted telecommunications sent directly to a
    person who has “previously told the caller not to make a telecommunication to those premises.”
    Ohio Rev. Code § 2917.21(A)(5). It thus differs from §§ 2917.21(B)(1) and (B)(2) in two major
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    ways: (A)(5) does not contain the same “purpose” requirement as the sections Plaintiffs contest,
    and it requires the recipient to request the speaker to cease telecommunications. Id.; see Hagedorn,
    715 F. App’x at 503–04 (involving charges under (A)(5) against a village resident who sent fifteen
    e-mails to the village mayor’s personal e-mail address, despite requests to stop). A prosecution
    under this section thus does not meaningfully contribute to a history of prosecution under
    §§ 2917.21(B)(1) and (B)(2).
    Turning to cases that do not involve political speech, Plaintiffs argue that one recent
    prosecution under § 2917.21(B)(2)2 and two cases under the former § 2917.21(B) substantiate their
    fear of prosecution. In C.W. v. Board of Education of Sycamore Community School District,
    prosecutors charged a 12-year-old student under §§ 2917.21(B)(1) and (B)(2) for posting on the
    social media website Instagram of a group called “Clown.Clann,” purportedly a group of “scary
    clowns.” No. 1:17CV465, 
    2017 WL 8784837
    , at *1–*2 (S.D. Ohio Aug. 7, 2017). Amid a national
    scare over clowns threatening to attack schools, the student posted two comments under a
    Clown.Clann picture: “DUMB F---- COME TO SYCAMORE YOU WONT” and “I’ll square up
    to these [clowns].”        
    Id. at *1.
       Prosecutors charged him with telecommunications and
    cyber-harassment, though it was unclear what the student’s purpose was in posting. 
    Id. at *2.
    In
    another case involving social media, an Ohio appeals court reversed a defendant’s conviction
    under § 2917.21(B) for posting a picture of a former friend on her MySpace social media profile
    with the caption, “Molested a little boy,” because the court found the defendant could have posted
    with a non-harassing, non-threatening, and non-abusing purpose. 
    Ellison, 900 N.E.2d at 229
    −31.
    The court held that § 2971.21(B) “creates a specific-intent crime: the state must prove the
    defendant’s specific purpose to harass,” and concluded that “[t]he legislature has created this
    2
    Plaintiffs also reference three other cases brought under § 2917.21(B)(2), but these cases either do not include
    sufficient factual information or appear to involve threatening, not abusing or harassing, posts.
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    substantial burden to limit the statute’s scope to criminal conduct, not the expression of offensive
    speech.” 
    Id. at 230.
    In the final Ohio case Plaintiffs offer, a state appeals court upheld a
    defendant’s convictions under Ohio’s terroristic threats statute and § 2917.21(B) because he
    posted, with the purpose to threaten, about his plans to kill police officers on his Facebook profile.
    
    Klingel, 88 N.E.3d at 460
    –61.
    Plaintiffs acknowledge that Klingel was rightly decided under § 2917.21(B)’s prohibition
    on telecommunications made with threatening purpose—the portion of the statute they do not
    challenge here. But Sycamore and Ellison highlight the willingness of local prosecutors to bring
    charges under §§ 2917.21(B)(1) and (B)(2) for posts that were perceived to be made with the
    requisite intent to abuse or harass, and not to threaten. Plaintiffs emphasize that even though the
    defendant in Ellison was ultimately acquitted, she was still prosecuted for an online post despite
    her lack of criminal intent. Plaintiffs allege that this type of prosecution is precisely what they fear
    “should police or prosecutors believe their posts were written with the purpose of abuse or
    harassment.” (R. 1, ¶ 15, PageID 5.)
    None of Plaintiffs’ articles or comments provided on the record, however, appear
    aggressive and “vaguely menacing,” as Plaintiffs acknowledge was the case in Sycamore, or easily
    misconstrued as harassing or abusive, as in Ellison. Plunderbund describes its articles as “carefully
    researched and factual,” (R. 1, ¶ 4, PageID 2) as is shown by the articles it submitted, which
    employ a reasoned, if at times derisive, tone. Articles such as “DeWine Pay-to-Play Cookbook:
    In Bed with Anti-Gay Activists” and “Attorney General DeWine Incorrectly Suggests Witnesses
    to Steubenville Rape Did Not Need To Call Police” appear to have political and journalistic
    purpose. (R. 2-3, PageID 39.) Similarly, Spinelli’s online posts—such as the 2,500-word
    Plunderbund article “Ron O’Brien: ‘Dead Man Walking’?” describing obstacles to Defendant
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    O’Brien’s re-election—address matters of public concern and appear unlikely to be considered
    abusive or harassing. (Id., PageID 40.) Portage County TEA Party has not alleged that anyone
    has perceived its members’ posts on social media and other websites as abusive or harassing.
    Moreover, its members’ posts occur in the context of political debate and public discourse and are
    therefore distinguishable from the posts in Sycamore, Ellison, and Klingel.
    Plaintiffs thus have not cited a single case that shows a history of enforcement against them
    or against the type of online posts they make. This lack does not matter, Plaintiffs argue, because
    their case is similar to Babbitt v. United Farm Workers National Union, where the Supreme Court
    held that a labor union had standing to challenge a statute prohibiting “dishonest, untruthful and
    deceptive publicity” during an agricultural boycott, even though prosecutors had never applied
    that statute to the union or similar 
    entities. 442 U.S. at 301
    –02. In Babbitt, however, because no
    specific mental state was required under the statute, the inference arose that the government could
    appropriately prosecute the union for making statements the union believed, incorrectly, to be true.
    
    Id. The Court
    found the union’s fear of prosecution was not “imaginary or wholly speculative”
    since “erroneous statement is inevitable in free debate.” 
    Id. at 301
    (quoting N.Y. Times Co. v.
    Sullivan, 
    376 U.S. 254
    , 271 (1964)). By contrast, Ohio’s cyber-harassment law requires a specific
    mental state, and it is not “inevitable” that Plaintiffs will post articles or comments that appear to
    be made with the specific intent to abuse or harass another person. See 
    id. Plaintiffs have
    not alleged a history of enforcement against them, and their subjectively
    chilled speech differs significantly from previously prosecuted online posts in subject, tone,
    context, and purpose. Plaintiffs have not sufficiently alleged “substantial risk that the harm will
    occur,” SBA 
    List, 134 S. Ct. at 2341
    (internal quotation marks omitted), and therefore have not
    established the first McKay factor, see 
    McKay, 823 F.3d at 869
    .
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    No. 18-3270, Plunderbund Media, L.L.C., et al. v. Mike DeWine, et al.
    b. Ease or Likelihood of Enforcement
    A statute is more likely to trigger a credible fear of prosecution if it contains a feature
    making enforcement of the statute “easier or more likely.” 
    Id. One such
    feature is a citizen-
    enforcement provision authorizing a member of the public to file complaints. See SBA 
    List, 134 S. Ct. at 2345
    ; 
    Platt, 769 F.3d at 452
    . Only law enforcement officials can investigate a claim of
    telecommunications or cyber-harassment, and only prosecutors can bring charges. Plaintiffs argue
    that a political figure or official could feel so harassed or abused by online posts that they report
    those posts to the police and that county prosecutors could be eager to prosecute because Plaintiffs
    have been “persistent critic[s] of prosecutors.” (R. 2-3, PageID 40.) While these scenarios could
    occur, they do not rely on alleged facts and instead require accepting that plaintiffs “might incur
    injury in the future if the law is not properly followed and if their intentions are misconstrued.”
    
    White, 601 F.3d at 554
    (citation omitted).
    Alleging a risk of false prosecution fails to establish standing when plaintiffs’ unsupported
    allegations are “simply too . . . highly conjectural to present a threat of immediate injury, as the
    allegations rest[] on a string of actions the occurrence of which is merely speculative.” 
    Id. (internal quotation
    marks and citation omitted). In White, gamefowl breeders and an organization that
    promotes gamefowl showing brought a pre-enforcement challenge to a provision of the Animal
    Welfare Act banning animal fighting. 
    Id. at 548–51.
    The plaintiffs feared that when they
    transported their birds across state lines, authorities “may misinterpret the plaintiffs’ intent and
    may wrongly prosecute them.” 
    Id. at 553.
    We found that the chain of events necessary for false
    prosecution veered “into the area of speculation and conjecture.” 
    Id. at 554.
    Here, Plaintiffs allege
    a similarly unlikely scenario: that they make an online post without the requisite intent to abuse
    or harass, the post is misinterpreted as having an abusive or harassing purpose, the post is reported,
    and law enforcement authorities bring charges despite investigating Plaintiffs’ long histories of
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    No. 18-3270, Plunderbund Media, L.L.C., et al. v. Mike DeWine, et al.
    legitimate political speech and despite the specific-intent requirement in the statute and its caselaw.
    Plaintiffs’ allegations are too speculative to support the McKay factor addressing the ease or
    likelihood of enforcement.
    c. Evidence of Intention to Enforce
    Finally, a threat of future enforcement is considered especially substantial when the
    administrative agency “ha[s] not disavowed enforcement if [plaintiffs] make similar statements in
    the future.” SBA 
    List, 134 S. Ct. at 2345
    ; see also 
    Babbitt, 442 U.S. at 302
    (finding plaintiffs could
    reasonably fear prosecution because “the State has not disavowed any intention of invoking the
    criminal penalty provision against unions that commit unfair labor practices”). This court, sitting
    en banc, has “[given] weight to the government’s assertion that ‘it has no intention of enforcing
    the law in this setting—as proved by the fact that the Attorney General, a party to this case and the
    sole defendant in it, has taken the position that the statute does not apply to [the conduct in
    question].’” 
    Glenn, 690 F.3d at 426
    (quoting Connection Distrib. Co. v. Holder, 
    557 F.3d 321
    ,
    339 (6th Cir. 2009)).        In Glenn, the plaintiffs—pastors seeking to “publicly denounce
    homosexuality”—did not allege “any express (or even implied) threat of official enforcement of
    the Hate Crimes Act against Plaintiffs or any other religious leaders for the type of conduct they
    seek to practice.” 
    Id. at 424.
    Thus, we found “there is nothing that objectively supports ‘a credible
    threat of prosecution.’” 
    Id. (quoting Johnson
    v. Turner, 
    125 F.3d 324
    , 337 (6th Cir. 1997)). But
    standing may be established under our precedent on targeted laws, which holds that even when
    prosecutors disavow enforcement of a law, plaintiffs may still sufficiently allege standing when
    the law is specifically targeted at the plaintiffs. See Planned Parenthood Ass’n of Cincinnati, Inc.
    v. City of Cincinnati, 
    822 F.2d 1390
    , 1394–95 (6th Cir. 1987) (finding that the language of an
    ordinance targeting abortion providers “clearly contemplates that facilities such as the one
    operated by Planned Parenthood would be subject to application of the statute”).
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    No. 18-3270, Plunderbund Media, L.L.C., et al. v. Mike DeWine, et al.
    Defendants—the people Plaintiffs allege would prosecute them for political speech—have
    expressly affirmed that the law in question does not reach political expression. Like the Attorney
    General in Glenn, Defendants have disavowed enforcement of the statute against Plaintiffs’ articles
    and comments. 
    See 690 F.3d at 426
    . Unlike the plaintiffs in Planned Parenthood, Plaintiffs have
    not shown that their speech is specifically targeted by §§ 2917.21(B)(1) and (B)(2) such that the
    statutes clearly apply to them. 
    See 822 F.2d at 1394
    . “[P]ersons having no fears of state
    prosecution except those that are imaginary or speculative, are not to be accepted as appropriate
    plaintiffs.” 
    Babbitt, 442 U.S. at 298
    (quoting Younger v. Harris, 
    401 U.S. 37
    , 42 (1971)). The
    lack of a history or likelihood of enforcement combined with Defendants’ stated intention not to
    enforce the telecommunications or cyber-harassment statutes against Plaintiffs shows there is no
    “substantial risk” that Plaintiffs will be prosecuted. SBA 
    List, 134 S. Ct. at 2341
    .
    Because Plaintiffs have not established any McKay factor to substantiate their allegation of
    subjective chill, Plaintiffs have not established a credible threat of prosecution. See 
    McKay, 823 F.3d at 868
    –69.
    III.   CONCLUSION
    The dispositive issue here is whether Plaintiffs have suffered an injury-in-fact. Plaintiffs
    have alleged a subjective chill of their constitutional rights but have failed to allege a factual, non-
    conjectural basis for their fear of prosecution. Without a credible threat of enforcement sufficient
    to establish an injury-in-fact, Plaintiffs lack standing to bring a pre-enforcement challenge to
    Ohio’s cyber-harassment statute. We therefore AFFIRM the district court’s dismissal of the
    claims.
    -16-