Supreme Court turns away Ohio political-cartoon case

Wednesday, February 14, 2001

Almost everyone from his lawyer to his two grown sons warned Dan McKimm not to get his hopes up about taking a case about a political cartoon to the Supreme Court.

After all, they said, the high court chooses only a few hundred appeals from the thousands it receives every year. The justices, they said, more than likely would turn away McKimm’s claims that various Ohio court rulings violated his First Amendment free-speech rights.

But McKimm made it a daily routine anyway to check updates at the Cornell Law School Web site, always hoping that the justices would pick his among the handful of First Amendment cases they would hear this term.

One day his case did appear on a list — a list of cases denied a writ of certiorari.

“Nothing can fully describe the gut wrenching and sickening feeling I felt upon seeing my case under the list of writs that were denied,” McKimm said in an interview. “A five-year-long struggle to convince the court that a cartoon drawing in a political campaign brochure was and is capable of an innocent construction, especially in light of absolutely no evidence that I intended otherwise, finally crashed into a brick wall.”

The struggle began with a 1995 election in Jackson Township, Ohio (Stark County, near Canton), where McKimm had challenged an incumbent for a seat on the township council. McKimm won the election, but his opponent waged a new battle in court over a campaign brochure.

The brochure consisted of a quiz that included 18 multiple-choice questions and several small drawings highlighting why McKimm felt he would make a better trustee than incumbent Randy Gonzalez.

Appearing next to a question involving Gonzalez’s handling of an architectural bid was the cartoon of a hand clutching a packet of money.

And that’s where the debate began — over whether the drawing implied that Gonzalez had taken a bribe or whether it could mean a myriad of other things.

Gonzalez filed a complaint with the Ohio Election Commission and a separate civil lawsuit, contending that the brochure and its drawings indicated that he had taken a bribe. McKimm lost the lawsuit and was ordered to pay $73,000 in damages and attorney’s fees. He said he had planned to appeal that case, but a previous attorney failed to file it in time.

McKimm, in arguments before the commission and various courts, said the cartoon could take on several meanings. He said he thought the drawing characterized Gonzalez’s award of the bid as “underhanded, less than open, and hidden beneath the table of secrecy.”

McKimm found some 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 the cartoon enjoyed full First Amendment protection.

The Ohio Supreme Court, however, overturned that verdict. The court said a “reasonable reader” would interpret the cartoon to mean only one thing: Gonzalez took a bribe. The court further determined that McKimm knew that inference was untrue but delivered the brochure anyway.

“After our independent review of this record, we agree with the commission and the trial court that McKimm disseminated his cartoon well aware of its false implication,” Justice Deborah Cook wrote in the court’s unanimous decision. “McKimm conveyed a message to the reasonable reader that he knew had no basis in fact.”

But McKimm said no one during hearings or trials ever produced proof that he held any malice against Gonzalez. Instead, the complaint and lawsuit effectively destroyed any political career he might have, he said.

“Candidates for public office, especially candidates who are willing to confront incumbent office holders in an effort to bring issues to light, should never be threatened with being stripped of their First Amendment rights under the guise of having violated election campaign laws,” McKimm said. “Commissions and judges need to recognize the profound effect of their decisions.”

A spokeswoman for the Ohio Election Commission referred questions to the Ohio Attorney General’s office, which had argued the case before the state Supreme Court.

Tom Boyer, a spokesman for the attorney general’s office, praised both the Ohio Supreme Court ruling and the U.S. Supreme Court’s decision to let the ruling stand, saying they show Ohio election laws to be in tune with the First Amendment.

“I think it clarified … what the boundaries are in what is acceptable and not acceptable in a campaign context,” Boyer said.

McKimm, who estimates that he has spent more than $250,000 on the case, said he knew little about the breadth of First Amendment rights before his case.

“Now, it is my responsibility to do what I can to ensure that others do not experience what my family and I have experienced,” he said. “It is my hope that I may educate others, including those who render our judicial decisions, of the significance of free speech and freedom of expression.”

A spokesman for the attorney general’s office praised both the Ohio Supreme
Court decision and the U.S. Supreme Court’s decision to let the decision
stand, saying it shows Ohio election laws to be in tune with the First

“I think it clarified a little in what the boundaries are in what is
acceptable and not acceptable in a campaign context,” said Tom Boyer, a
spokesman from the attorney general’s office.

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