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Township trustee, elections board clash over political drawing

Phillip Taylor
First Amendment Center

09.16.99

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When Dan McKimm defeated an incumbent trustee for a position on the Jackson Township, Ohio, Council four years ago, he barely had a moment to enjoy his victory before he came under the scrutiny of the Ohio Elections Commission.

At issue: A small cartoon in one of his campaign brochures that depicted a hand clutching money underneath a table.

To the Elections Commission and McKimm's opponent, the drawing clearly suggested the passing of a bribe. But according to McKimm, the sketch was meant only to illustrate how his opponent, as a trustee, had violated township bidding policy by awarding a $51,000 architectural contract without taking bids.

"The cartoon has no face or body, yet my opponent feels that it depicts him breaking the law," McKimm told free! "I have consistently argued that the cartoon was not meant to be interpreted that way, that it was a simple and symbolic illustration of his voting record."

The commission disagreed and publicly reprimanded McKimm in 1996 for including false and misleading information in his campaign materials. A state appeals court later reversed a lower court ruling that the First Amendment didn't protect the cartoon. The case is now before the Ohio Supreme Court, which hasn't yet scheduled a date to hear arguments.

McKimm, who defeated incumbent Randy Gonzalez for Jackson Township trustee in November 1995, mailed a campaign brochure to registered voters in the 36,000-resident township near Canton a week before the election.

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 Gonzalez. Appearing next to a question involving Gonzalez's handling of an architectural bid was a cartoon of a hand holding a packet of cash underneath a table.

After the election, Gonzalez filed a complaint with the Elections Commission. About the same time, he also sued McKimm in the local common pleas court for libel.

In September 1996, the Ohio Elections Commission ruled against McKimm, determining that he had violated state election law because he had knowingly placed inaccurate information throughout the brochure. The commission gave McKimm a public reprimand.

The commission contended that the cartoon could only be interpreted in one way: that Gonzalez had accepted a bribe for his vote on architectural work for a new park pavilion.

McKimm said he wasn't implying that Gonzalez took a bribe but that he had violated a township policy that required open bidding for any contract greater than $10,000.

McKimm appealed the case to Franklin County Common Pleas Court. In January 1998, the judge determined that most of the brochure was protected by the First Amendment. The cartoon, however, was deemed to be defamatory.

But Ohio's 10th District Court of Appeals reversed the decision in December 1998, ruling that the entire brochure enjoyed First Amendment protection. The Ohio Elections Commission appealed the decision to the Ohio Supreme Court.

Calls placed to the Elections Commission by free! weren't returned.

In a brief filed last month, attorneys for the Elections Commission called the state appeals court decision "out of step with the First Amendment" and said it "squelches the Commission's authority to punish false and misleading campaign speech."

"That decision is wrong, for the First Amendment has never been interpreted to bar penalties for false speech simply because the speaker professed ignorance of his falsehood," the attorneys wrote. "Were the Amendment's sweep so broad, no one would ever be liable for defamation, and Ohio's statutes permitting the Elections Commission to punish false and misleading statements would be not only unenforceable, but likely unconstitutional."

In the meantime, McKimm lost his civil libel suit. Ohio's 5th District Court of Appeals ruled that McKimm had defamed Gonzalez and ordered him to pay $73,000 in damages and attorneys' fees.

McKimm planned to appeal the decision to the Ohio Supreme Court but said his attorney failed to file in time.

"That was an absolute nightmare, because I fought so long and hard on this," said McKimm, who added that he would continue fighting for the cartoon. "One never recognizes how important the Constitution is until one experiences what I've experienced."

McKimm said he wouldn't campaign for public office again, leaving his seat to be filled in the November election.

"I cannot put my family or myself through this kind of experience again," McKimm said. "But if we can't protect political campaign speech and cannot recognize that political campaign speech is most sacred, my fear is, what candidate in this area will want to come out and express his beliefs, his feelings, his principles when he knows he risks having a libel suit against him?"

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