State Editorial Control Over Ballot‐Initiative Summaries Violates First Amendment

Introduction

Case: Cynthia Brown et al. v. David Yost, Ohio Attorney General
Court: United States Court of Appeals for the Sixth Circuit, April 9, 2025
Issue: Whether Ohio’s requirement that the Attorney General certify a “fair and truthful” summary of a proposed constitutional amendment before petition circulators may gather signatures violates the First Amendment.

In this case, a group of Ohio citizens (Plaintiffs‐appellees) seeking to amend the Ohio Constitution via two ballot initiatives challenged the eight‐time refusal of the Ohio Attorney General (Defendant‐appellant) to certify their preferred language summary of one proposed amendment and his insistence on approving or editing the summary before any petition circulation could start. The district court granted a preliminary injunction barring enforcement of the “fair and truthful summary” requirement as applied to Plaintiffs’ two measures, and ordered immediate certification of Plaintiffs’ chosen summaries. The Attorney General moved for a stay pending appeal. The Sixth Circuit lifted the stay, holding that Ohio’s process likely violates core First Amendment protections of political speech and that Plaintiffs will suffer irreparable harm if barred from gathering signatures.

Summary of the Judgment

The Sixth Circuit—through Judge Moore—reaffirmed that initiative petition circulation is “core political speech” protected by the First Amendment. Under Ohio law, no petition may proceed to signature gathering unless the Attorney General deems the summary “fair and truthful.” In Plaintiffs’ experience, Attorney General Yost repeatedly edited their draft summaries, sometimes on grounds untethered to the text of the proposed amendment, effectively substituting his own editorial judgment for that of the petition sponsors. The district court found a likely First Amendment violation and issued a preliminary injunction forbidding enforcement of the certification requirement for Plaintiffs’ two initiatives and ordering certification of Plaintiffs’ preferred language. The district court then stayed its own injunction pending appeal, an action the Sixth Circuit held to be an abuse of discretion. Because Plaintiffs are likely to succeed on the merits under both strict scrutiny (for content‐based regulation of core speech) and Anderson‐Burdick balancing (for severe burdens on initiative access), and because Plaintiffs will suffer irreparable injury (losing months in which to gather hundreds of thousands of signatures), the Sixth Circuit vacated the stay.

Analysis

1. Precedents Cited

• Meyer v. Grant (486 U.S. 414 (1988)) – Core political speech in petition circulation; disallowed state regulation that altered petitioners’ content.
• Miami Herald Publishing Co. v. Tornillo (418 U.S. 241 (1974)) – Editorial control by state officials over private advocacy materials violates free‐press doctrine.
• McIntyre v. Ohio Elections Commission (514 U.S. 334 (1995)) – Government cannot require disclaimers on anonymous political leaflets; direct content regulation of advocacy speech.
• Moody v. NetChoice, LLC (603 U.S. 707 (2024)) – Government may not commandeer or reshape private expressive activity to “improve the marketplace of ideas.”
• Anderson v. Celebrezze (460 U.S. 780 (1983)) & Burdick v. Takushi (504 U.S. 428 (1992)) – Balancing test for regulations on electoral/initiative processes.
• Buckley v. American Constitutional Law Foundation, Inc. (525 U.S. 182 (1999)) – Upheld identification requirement for petition circulators but distinguished regulation that alters message.
• Doe v. Reed (561 U.S. 186 (2010)) – Disclosure requirements and petition signature publication; acknowledgment that procedural rules may survive First Amendment challenge.

2. Legal Reasoning

Core Political Speech and Strict Scrutiny:
Circulating a ballot initiative petition is among the most protected forms of political advocacy—The Supreme Court has said the First Amendment “is at its zenith” in this context (Grant, 486 U.S. at 425). Ohio’s requirement empowers the Attorney General to exercise subjective, content‐based editorial control over the summary that appears on the face of every petition. This is akin to a state censorship board demanding changes to leaflets or campaign materials. Under Meyer and Tornillo, the degree of intrusion on petitioners’ editorial judgment demands strict scrutiny: content‐based speech restrictions must be “narrowly tailored to serve compelling state interests.” The State’s interest in preventing fraud and confusion, while important, can be addressed by less‐restrictive means (e.g., existing Ohio statutes banning false statements, post‐publication enforcement, etc.). The “fair and truthful” standard is defined only by the Attorney General’s discretion, inviting arbitrary, viewpoint‐ driven decisions, rather than a clear, objective test.

Anderson‐Burdick Balancing:
Alternatively, Ohio’s summary‐certification requirement imposes a severe burden on Plaintiffs’ access to the initiative process: they either must accept the Attorney General’s edits or risk never gathering legally valid signatures. Under Anderson and Burdick, such a burden requires a showing that the regulation is precisely tailored to an overriding state interest. The certification process is not narrowly drawn—particularly given the lack of expedited judicial review and the fact that Plaintiffs must collect over 400,000 signatures within 125 days of election. The statute thus fails the balancing test.

Government Speech vs. Private Speech:
The dissent argued the certified summary is government speech or speech in a government benefit program. But the Sixth Circuit majority distinguishes certified summaries from traditional government speech (election ballots, license plates): a certified summary is drafted by private initiative sponsors and used to persuade voters to sign their petition. The public would not naturally perceive it as an official state position on the merits. Nor is this speech “inside” a purely state‐funded program; the petition summary is the private communicative core of initiative advocacy. Thus, Ohio’s editorial intervention on private speech cannot be shielded as government speech or as a permissible “condition” on a state legislative mechanism.

3. Impact

On Future Initiative Campaigns: This decision curbs state officials’ ability to rewrite petitioners’ advocacy materials. Attorneys General in other states who review petition language must adopt clear, objective standards and avoid exchanging their policy judgments for the petitioners’. It preserves petitioners’ control over how they describe proposed constitutional changes to potential signers.

On Free‐Speech Jurisprudence: The ruling reaffirms that content‐based regulation of core political speech triggers strict scrutiny. It draws a sharper line between permissible process‐oriented rules (single‐subject requirements, signature‐threshold rules) and impermissible editorial control over advocacy content. It also extends the application of Grant beyond panel decisions and counters certain dissenting circuits that deem initiative summary review insulated from First Amendment attack.

Complex Concepts Simplified

• Core Political Speech: Speech directly involved in influencing voters—like talking to someone to sign a petition—is at the heart of First Amendment protection.
• Content‐Based Regulation: Any rule that allows a government official to decide what words or arguments you use is content‐based, and usually must pass strict scrutiny.
• Strict Scrutiny: The toughest test in constitutional law: the government must prove it has a compelling reason to regulate speech and that the regulation is narrowly tailored to achieve that goal.
• Anderson‐Burdick Test: When a state law makes it harder to vote or propose laws, courts weigh (1) how big the burden is, (2) how strong the state’s justification is, and (3) whether less restrictive ways exist. Severe burdens must satisfy strict scrutiny; moderate ones face lower review.
• Government Speech: Speech the government itself uses to convey official messages (e.g., ballot instructions). When people draft their own materials, even if a government certifies them, they remain private speech—unless the government truly controls the message.
• Unconstitutional Conditions Doctrine: The government may choose not to fund or assist certain speech, but it cannot force someone to give up First Amendment rights just to participate in a public benefit program, unless that limitation is objectively defined and necessary to the program.

Conclusion

The Sixth Circuit’s decision establishes that Ohio’s requirement permitting the Attorney General to exercise unbridled editorial control over petition summaries likely violates the First Amendment. Initiative petition circulation is core political speech, and state officials may not rewrite or veto the language that petitioners use to persuade voters. Ohio’s “fair and truthful” certification process lacks objective standards, imposes severe burdens on political speech, and fails strict scrutiny. Going forward, states may continue to regulate the form and timing of petitions, but they may not substitute their own policy judgments for the petitioners’ advocacy language. This ruling fortifies fundamental First Amendment protections for grassroots democratic advocacy and clarifies the limits of state oversight in direct‐ democracy processes.