Ohio high court hears case of candidate’s political cartoon

Monday, February 14, 2000

After hearing a case regarding a political cartoon, the Ohio Supreme Court appears poised to uphold a state reprimand against the candidate who distributed it.

The case involves a small cartoon that appeared in a 1995 political brochure for Dan McKimm, a candidate for trustee of Jackson Township. The sketch depicts a hand clutching money underneath a table and appeared next to text involving a contract bid.

McKimm contends that the drawing was meant to show how his opponent, while a trustee, had violated township policy by awarding a $51,000 architectural contract without going through the bidding process.

But the Ohio Elections Commission and McKimm’s opponent both contend the drawing suggested the passing of a bribe.

During a Jan. 25 hearing, several of the justices seemed to agree.

“If you show this to 100 people, 99 will say it looks like a bribe,” Justice Evelyn Lundberg Stratton said during the hearing. “That’s the problem with your argument. [McKimm] said he meant something else, but someone reading this can’t read his mind.”

Chief Justice Thomas Moyer asked why McKimm didn’t draw the hand over the table.

Daniel McGown, an attorney for McKimm, told the court that his client didn’t know the cartoon would be interpreted in a way other than what he intended.

The case began soon after McKimm defeated incumbent Randy Gonzalez in the November 1995 trustee election. Gonzalez then filed a complaint with the Elections Commission and a separate civil lawsuit.

McKimm lost the civil case and was ordered to pay $73,000 in damages and attorney’s fees. McKimm said he planned to appeal that case, but a former attorney of his failed to file in time.

Meanwhile, McKimm found more success in fighting the complaint. Although the Elections Commission publicly reprimanded McKimm in 1996, Ohio’s 10th District Court of Appeals later reversed the decision saying the brochure and cartoon enjoyed full First Amendment protection.

The Elections Commission then appealed to the Ohio Supreme Court. Attorneys for the commission didn’t return several calls for comment.

But in court papers, the commission argues that the appeals court decision was “out of step with the First Amendment” and “squelches the Commission’s authority to punish false and misleading campaign speech.”

McKimm said he hoped the state high court follows the appeals court’s rationale and finds that his speech is protected by the First Amendment. He said that the state presented “not a scintilla of evidence” that he knew voters would see the picture as a bribe.

“It has been a frightful experience,” said McKimm, who didn’t run for re-election last November.

Phillip Taylor, a reporter for the Daily Press in Newport News, Va., is a free-lance correspondent for the First Amendment Center.