## Facts

- Dan McKimm ran for Jackson Township trustee in a 1995 election against incumbent Randy Gonzalez.
- McKimm distributed a campaign brochure styled as a “multiple-choice quiz” criticizing Gonzalez and including a cartoon showing a hand passing money under a table.
- Gonzalez filed a complaint with the Ohio Elections Commission alleging the brochure contained false statements made knowingly or with reckless disregard for truth, in violation of Ohio Rev. Code § 3517.21(B)(10).
- The Commission found a violation and issued McKimm a public reprimand; it did not refer the matter for criminal prosecution.
- On administrative appeal, the trial court held the brochure’s text was protected speech but upheld the reprimand based on the cartoon as an unprotected false statement implying corruption.
- The court of appeals reversed, finding insufficient clear and convincing evidence that McKimm acted with “actual malice.”
- The Ohio Elections Commission appealed to the Supreme Court of Ohio.

## Issues

1. Whether applying Ohio Rev. Code § 3517.21(B)(10) to reprimand a candidate for a campaign cartoon violates the First Amendment and Ohio’s free-speech guarantees when enforcement is limited to false statements of fact made with “actual malice.”
2. Whether the record contained clear and convincing evidence that the cartoon conveyed a false factual assertion about a candidate and that McKimm disseminated it knowing it was false or with reckless disregard of its truth.

## Decision

- The Supreme Court of Ohio reversed the court of appeals and reinstated the Commission’s public reprimand.
- The court held § 3517.21(B)(10) is constitutionally enforceable if limited to false statements of fact about candidates made with New York Times v. Sullivan “actual malice” and proven by clear and convincing evidence.
- The court concluded the cartoon, in context, conveyed a factual allegation of corrupt or illegal conduct by Gonzalez rather than protected opinion or rhetorical hyperbole.
- The court found clear and convincing evidence supported the Commission’s determination that McKimm acted with actual malice given the lack of factual basis for the implied charge and the nature of the accusation.

## Legal Principles

- A state may sanction campaign speech only for materially false statements of fact, not for opinion or rhetorical hyperbole.
- For speech about candidates or public officials, punishment for a false factual statement requires proof of “actual malice” (knowledge of falsity or reckless disregard for truth).
- The constitutionally required burden of proof for actual malice in this setting is clear and convincing evidence.
- A political illustration may be treated as asserting fact when, in context, it reasonably conveys a concrete accusation of wrongdoing.

## Conclusion

The Supreme Court of Ohio upheld a public reprimand under Ohio’s campaign false-statement statute, holding that sanctions are permitted only for false factual assertions about a candidate made with actual malice and established by clear and convincing evidence, and concluding those requirements were satisfied as to the campaign cartoon.


McKimm v. Ohio Elections Comm'n, 89 Ohio St. 3d 139, 729 N.E.2d 364 (Ohio 2000)