Last Wednesday, a Sixth Circuit panel majority ruled (in Brown v. Yost) that Ohio attorney general David Yost likely violated the First Amendment free-speech rights of proponents of two initiatives to amend the state constitution when he exercised his authority under state law to determine that the initiative summaries that they presented to him were not “fair and truthful” statements of the proposed amendments. The panel majority lifted the stay that the district court had imposed on its own preliminary injunction that ordered Yost to certify the two initiative summaries.

Yost immediately filed an emergency application asking the Supreme Court to stay the preliminary injunction while he pursues his merits appeal in the Sixth Circuit and possible certiorari review in the Supreme Court. Justice Kavanaugh issued a temporary administrative stay of the injunction while he (or the full Court) gives the emergency application more careful consideration.

For the reasons that Judge John K. Bush spells out in his dissent and that Attorney General Yost sets forth in his emergency application, I believe that Justice Kavanaugh (or the Court) should grant the emergency application. As Judge Bush succinctly puts it:

The driving consideration here is that the Ohio Attorney General is likely to prevail in this action because the First Amendment does not bar the State from regulating the content of a certified initiative summary. The summary is a legislative action that, at most, constitutes government, not private, speech.

Yes, Bush spells out, the Ohio constitution supplements the legislative power of Ohio’s legislature by “permit[ting] the people—as an electorate and subject to regulations that the State’s elected officials may impose—to act in a sovereign, legislative capacity to make law, including constitutional law, through an initiative process.” But “[w]hen the people of Ohio choose to avail themselves of that power, they do not act in a private capacity; they act like a legislature, as the sovereign’s lawmaking body.”

Under the framework that governs the initiative process, the committee designated as sponsors of an initiative must submit for the attorney general’s review a petition that contains the proposed amendment and a summary. The petition may advance to the next stage in the process only if the attorney general determines that the summary is a “fair and truthful” statement of the proposed amendment. Once certified, a summary becomes part of the state’s official petition, which the sponsors then use to solicit the requisite number of signatures needed to get the initiative on the ballot. The sponsors remain “free to lobby, petition, and engage in all First Amendment-protected activities to advocate for their proposed amendment.” In their own private speech, they need not abide by, and are not constrained by, the certified summary.

The First Amendment, Bush explains, “has little to say about the power of a state government to structure the exercise of its legislative power and, in particular, to establish and regulate a fundamental aspect of that power—its state constitutional amendment process.” It is state law, not the First Amendment, that regulates the attorney general’s decision whether or not to certify an initiative summary. And state law enables initiative proponents to seek review in the state supreme court of the attorney general’s decision to reject a summary on the ground that it is not “fair and truthful.”

In his emergency application, Yost adds that this case “implicates an entrenched circuit split on an important issue, so there is a strong probability that the Court will grant certiorari.”