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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

BELLWETHER MUSIC FESTIVAL LLC, : Case No. 1:20-CV-463

et al., :
: Judge McFarland
Plaintiffs, :
: PLAINTIFF’S REPLY
v. : MEMORANDUM IN SUPPORT OF
: MOTION FOR TEMPORARY
AMY ACTON, et al., : RESTRAINING ORDER AND
: PRELIMINARY INJUNCTION
Defendants. : (Doc. No. 4)
:

Plaintiffs BELLWETHER MUSIC FESTIVAL LLC; ESK PRESENTS LLC; PROJECT

LIVE, LLC; and MARK W. MILLER hereby tender the following Reply Memorandum in support

of the Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 4,

PageID#138-54). Due to the severe time constraints imposed for tendering this Reply

Memorandum, compounded by preparation for the forthcoming hearing on the Motion for

Temporary Restraining Order and Preliminary Injunction, the following summary reply

arguments are tendered, though Plaintiffs reserve the right to further develop arguments as part of

the closing argument at the hearing currently scheduled for June 25,2020.

REPLY MEMORANDUM

During the Lochner-era, the Supreme Court pronounced that “[t]here are certain

fundamental principles [of constitutional law] …which are not open to dispute. [T]hose principles

[include:] …it is with the [power of the] state to devise the means to be employed [to guard the

public morals, the public safety, and the public health], taking care always that the means devised

do not go beyond the necessities of the case, have some real or substantial relation to the objects

to be accomplished, and are not inconsistent with its own Constitution or the Constitution of the
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United States.” House v. Mayes, 219 U.S. 270, 281-82 (1911)(emphasis added). In opposing the

Motion for Temporary Restraining Order and Preliminary Injunction, however, Defendants start

and stop with the principle that the State retains its police powers to guard, inter alia, the public

health. In so doing, Defendants essentially claim carte blanche authority to regulate the life, liberty

and freedom of individuals so long as the talismanic phrase of police powers is invoked.

What Defendants conveniently fail to appreciate, though, is that the police powers upon

which they rely are not without limitation; instead, police powers must be devised and exercised

so as to: (i) “not go beyond the necessities of the case”; (ii) have a “real or substantial relation to

the objects to be accomplished”; and (iii) not be “inconsistent with…the Constitution of the United

States.” Such a proposition and limitations are consistent with Jacobson v. Massachusetts, 197

U.S. 11 (1905). And, furthermore, consideration of the fundamental rights and the expansion of

federal court protection thereof must also be considered. Yet, the ODH (collectively, AMY

ACTON and LANCE HIMES) gives short shrift to these criteria and fail to fully consider the

limitations placed upon its Reign of Decrees.

The talismanic incantation of Jacobson is not the end-all-be-all.

The ODH appears to believe that its talismanic incantation of Jacobson will somehow

afford it and the Reign of Decrees blind deference from this Court. Acton/Himes Memorandum in

Opposition, at 7-13 (Doc. No. 15, PageIDE#225-31). Decided during the same term as Lochner

v. New York, 198 U.S. 45 (1905), Jacobson drew extensively upon the social-compact theory

within the Massachusetts Constitution to uphold the use of the state’s police powers to enforce

compulsory vaccination laws:

the liberty secured by the Constitution of the United States to every person within
its jurisdiction does not import an absolute right in each person to be, at all times
and in all circumstances, wholly freed from restraint. There are manifold restraints

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to which every person is necessarily subject for the common good…. In the
constitution of Massachusetts…, it was laid down as a fundamental principle of the
social compact that the whole people covenants with each citizen, and each citizen
with the whole people, that all shall be governed by certain laws for “the common
good,” and that government is instituted “for the common good, for the protection,
safety, prosperity and happiness of the people, and not for the profit, honor or
private interests of anyone man, family or class of men.”

Jacobson, 197 U.S. at 26-27.

But Jacobson did not grant unlimited police powers all in the name of the “common good”

(which the Ohio Constitution does not even mention when addressing the role of government. See

Ohio Const., art. I, sec. 2 (“[a]ll political power is inherent in the people. Government is instituted

for their equal protection and benefit”)). Instead, Jacobson explicitly recognized that:

it might be that an acknowledged power of a local community to protect itself

against an epidemic threatening the safety of all[] might be exercised in particular
circumstances and in reference to particular persons in such an arbitrary,
unreasonable manner, or might go so far beyond what was reasonably required for
the safety of the public, as to authorize or compel the courts to interfere for the
protection of such persons…. There is, of course, a sphere within which the
individual may assert the supremacy of his own will and rightfully dispute the
authority of any human government, especially of any free government existing
under a written constitution, to interfere with the exercise of that will.

Id. at 28-29 (emphasis added).

Thus, Jacobson recognized that police powers may not go “beyond the necessity of the

case” for the exercise of such powers. Id. at 28. And when such powers are “exercised in particular

circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or

might go so far beyond what was reasonably required for the safety of the public,” then it is

absolutely for “the courts to interfere for the protection of such persons”. Id. Furthermore,

Jacobson also acknowledged that “it is the duty of the courts to [] adjudge, and give effect to the

Constitution” when the exercise of police powers supposedly in advancement of, inter alia, the

public health “has no real or substantial relation to [the public health], or is beyond all question, a

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plain, palpable invasion of rights secured by the fundamental law”. Id. at 31 (quoting Mugler v.

Kansas, 123 U.S. 623, 661 (1887)). And even when the specific exercise of police powers is not

“beyond the necessity of the case”, has a “real or substantial relation” to the public health, and

does not invade a constitutional right, such an exercise of police powers may still not be exercised

“so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent

wrong and oppression.” Id. at 38.

Not surprisingly, the ODH believes the inquiry in this case should start and stop with

Jacobson, only to be accentuated by the non-precedential dicta of Chief Justice Roberts to which

not a single one of his colleagues agreed when the Supreme Court summarily denied an

interlocutory injunction.1 But the Court’s understanding, appreciation and protection of

fundamental constitutional rights has not remained static since Jacobson. The Court and

individual justices have recognized the broader protection now afforded to such rights which did

not exist when Jacobson was decided.

As a Lochner-era decision, Jacobson was decided at time when the Bill of Rights had not

been incorporated into the Fourteenth Amendment so as to apply against the states. Compare

1
The ODH places some significance upon the lone words of Chief Justice Roberts when he
simply concurred, over the dissent of four of his colleagues, to the denial of an application for
interlocutory injunctive relief in South Bay United Pentecostal Church v. Newsom, 590
U.S.____(2020). See Acton/Himes Memorandum in Opposition, at 1, 9, 11 & 21 (Doc. No. 15,
PageID#219, 227, 229 & 239. While four of his colleagues agreed with the denial of the
application, none of his colleagues joined his comments. Thus, the statements of Chief Justice
Roberts are his and his alone; they are not an opinion or precedent of the Supreme Court nor do
they express the view of any of the other, let alone a majority, of the justices. Comparable to a
denial of certiorari, the denial of an application for injunction pending an interlocutory appeal (and
the lone words of a single justice thereon) should not be construed as having any significance. See
House v. Mayo, 324 U.S. 42, 48 (1945)(“a denial of certiorari by this Court imports no expression
of opinion upon the merits of a case”); Brown v. Allen, 344 U.S. 443, 543 (1953)(Jackson, J.,
concurring)(“denial of certiorari should be given no significance whatever. It creates no precedent
and approves no statement of principle entitled to weight in any other case”).
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United States v. Cruikshank, 92 U.S. 542, 552 (1876)(“[t]he first amendment…was not intended

to limit the powers of the State governments in respect to their own citizens, but to operate upon

the National government alone. It is now too late to question the correctness of this construction”)

and Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922)(“neither the Fourteenth Amendment

nor any other provision of the Constitution of the United States imposes upon the states any

restrictions about ‘freedom of speech’”) with Gitlow v. New York, 268 U.S. 652 (1925)(“we may

and do assume that freedom of speech and of the press which are protected by the First Amendment

from abridgment by Congress are among the fundamental personal rights and ‘liberties’ protected

by the due process clause of the Fourteenth Amendment from impairment by the States”) and

Stromberg v. California, 283 U.S. 359, 368 (1931)(“the conception of liberty under the due process

clause of the Fourteenth Amendment embraces the right of free speech”).

Thus, prior to incorporation and the expansion of the duty of federal courts to protect

individual fundamental rights, individuals were relegated to seeking protection for such rights from

state constitutions and state courts. See Cruikshank, 92 U.S. at 552 (“[f]or their protection in its

enjoyment [to assemble for lawful purposes], therefore, the people must look to the States. The

power for that purpose was originally placed there, and it has never been surrendered to the United

States”). Thus, the deference set forth in Jacobson (which the ODH seeks to be blind deference)

was issued in that context. But with the subsequent expansion of the understanding and scope of

the Fourteenth Amendment, together with the more active role federal courts must take in

protecting such rights, such deference is clearly not as strong as ODH would make it.’

It is axiomatic that “federal courts have as their historical duty the protection of federal

constitutional rights,” Sheffield v. State of Texas, 411 F.Supp. 709, 714 (N.D. Tex. 1976), and since

the Lochner-era and since incorporation, that includes a diligence to protecting fundamental rights

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against encroachment from the states in all forms. Thus, this Court has its duty to consider the

challenge to the current decrees and, even consistent with Jacobson, assess whether such decrees

go “beyond the necessity of the case” for the exercise of such powers; are being exercised in “an

arbitrary, unreasonable manner” “go so far beyond what was reasonably required for the safety of

the public”; actually have “no real or substantial relation” to the public health; or is or results in “a

plain, palpable invasion of rights secured by the [Constitution].”

First Amendment – Music is a form of speech.

Initially, the ODH claims that First Amendment rights are not even implicated.

Acton/Himes Memorandum in Opposition, at 13-14 (Doc. No. 15, PageID#231-32). Such an

argument ignores that even the Supreme Court has recognized that “[m]usic is one of the oldest

forms of human expression… Music, as a form of expression and communication, is protected

under the First Amendment.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). “Even

when offered for entertainment purposes, and not political or ideological reasons, music is entitled

to First Amendment protection.” Hassay v. Mayor & City Council of Ocean City, 955 F.Supp.2d

505 (D. Md. 2013). And this applies in the context of concerts and music performances or

festivals. See Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1063 (1st Cir.

1980)(“Defendants do not dispute that the first amendment… protects Fact Concerts’ right to

produce jazz concerts”); see also Reed v. Village of Shorewood, 704 F.2d 943, 950 (7th Cir.

1983)(“[a]lhough the authors of the First Amendment were concerned with protecting political

rather than cultural expression and therefore might not have thought it a violation of the First

Amendment for Congress to pass a law forbidding the playing of Haydn’s string quartets on federal

government lands, the modern view is different. If the defendants passed an ordinance forbidding

the playing of rock and roll music in the Village of Shorewood, they would be infringing a First

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Amendment right, even if the music had no political message – even if it had no words – and the

defendants would have to produce a strong justification for thus repressing a form of ‘speech’”

(internal citations omitted)); Atlantic Beach Casino, Inc. v. Morenzoni, 749 F.Supp. 38, 41 (D.R.I.

1990)(“[t]he 2 Live Crew performance is protected First Amendment activity”).

Furthermore, “[s]peech is protected even though it is carried in a form that is sold for

profit.” ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th Cir. 2003); see Time, Inc. v. Hill,

385 U.S. 374, 397 (1967)(“[t]hat books, newspapers, and magazines are published and sold for

profit does not prevent them from being a form of expression whose liberty is safeguarded by the

First Amendment”). Thus, it should be beyond cavil that music performances and festivals,

including The Country Fest, is clearly entitled to protection under the First Amendment. See, e.g.,

Cinevision Corp. v. City of Burbank, 745 F.2d 560, 568 (9th Cir. 1984)(“under the first

amendment, there clearly are rights to promote protected expression for profit – including musical

expression. As a promoter of protected musical expression, Cinevision enjoys first amendment

rights”).

First Amendment – Prohibition on festivals, etc., is content-based

The ODH claims that the prohibition against music festivals is a content-neutral restriction

on speech. Acton/Himes Memorandum in Opposition, at 15 (Doc. No. 15, PageID#233). In

support of its proposition, the ODH quoted from part of a single sentence in the Supreme Court’s

decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015), wherein the Court stated that a

government regulation of speech is content based if a law “applies to particular speech because of

the topic discussed or the idea or message expressed.” Id. at 163. But had the ODH continued

reading the Supreme Court’s decision, they would have discovered that the Court recognized

“[s]ome facial distinctions based on a message are obvious” but that other distinctions based on a

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message “are more subtle, defining regulated speech by its function or purpose.” Id. And beyond

that criteria, a regulation is also content-based if it “distinguish[es] among different speakers,

allowing speech by some but not others”. Thomas v. Bright, 937 F.3d 721, ___ (6th Cir.

2019)(quoting Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010)).

Under either rubric, the prohibition against music festivals is a content-based regulation of

speech. In later arguing against the equal protection challenge, the ODH actually acknowledges

the regulation of the speech of festivals versus the speech of protesters is ascertained and

determined based upon the content of the speech. While claiming “[t]he differences between

festivals and political protest are obvious”, Acton/Himes Memorandum in Opposition, at 24 (Doc.

No. 15, PageID#242), the difference is what is being said, i.e., the content, at the respective events.

In fact, the content-based nature involved in this case becomes more apparent when

consideration is given to Geller v. DeBlasio, 2020 U.S. Dist. LEXIS 87405 (S.D.N.Y. May 18,

2020), a case which the ODH explicitly characterized as one that “bears close resemblance” to this

case. Acton/Himes Memorandum in Opposition, at 17 (Doc. No. 15, PageID#235). Geller

addressed what it concluded was a content-neutral regulation of speech. But unlike the present

situation, Geller prohibited “any non-essential gathering of individuals of any size for any reason”

which specifically included, gatherings for political protest; all mass gatherings were prohibited.

But unlike the situation in Geller, the decrees sub judice allow some speech while prohibit other

speech; what is and is not allowed sub judice is based upon the content.

While the ODH doesn’t provide any substantive argument on the point, it should simply

be noted that “[c]ontent-based regulations are ‘presumptively unconstitutional’ and analyzed under

strict scrutiny.” Thomas, 937 F.3d at ___. And the ODH cannot satisfy this high burden to justify

governmental restrictions or prohibitions on some speech but not other speech.

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First Amendment – even as a time, place or manner restriction, the prohibition on

festivals does not pass constitutional muster

While affording short shrift to the content-based regulation of speech occurring (and, in so

doing, failing to address strict scrutiny), the ODH attempts to have this Court focus predominately

(if not exclusively) upon the prohibition of festivals as a content-neutral time, place or manner

restriction on speech. Acton/Himes Memorandum in Opposition, at 15 (Doc. No. 15, PageID#233)

But even under that rubric, the prohibition on festivals does not meet constitutional muster.

A content-neutral time, place or manner restriction is enforceable if it satisfies an

intermediate scrutiny standard; to satisfy intermediate scrutiny, a “time, place, and manner”

restriction must (1) be “justified without reference to the content of the regulated speech”; (2) be

“narrowly tailored to serve a significant governmental interest”; and (3) “leave open ample

alternative channels for communication of the information” that the speaker wishes to

communicate. Ward, 491 U.S. at 791. “When the Government restricts speech, the Government

bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entm’t

Group, Inc., 529 U.S. 803, 816 (2000).

In defending a content-neutral time, place or manner restriction on speech, the government

“must do more...than ‘assert [] interests [that] are important in the abstract.’” Saieg v. City of

Dearborn, 641 F.3d 727, 736-37 (6th Cir. 2011) (quoting Turner Broad Sys., Inc. v. F.C.C., 512

U.S. 622, 664 (1994)). The interest or interests must be “real” as opposed to “conjectural.” Id. at

737. “‘Mere speculation about danger’ is not an adequate basis on which to justify a restriction of

speech.” Id. at 739 (quoting Bay Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir.

1990)). Furthermore, “[e]xemptions from an otherwise legitimate regulation of a medium of

speech...may diminish the credibility of the...rationale for restricting speech in the first place.” Id.

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at 737 (quoting City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)); see also Rubin v. Coors Brewing

Co., 514 U.S. 476, 489 (1995)(“exemptions and inconsistencies bring into question the purpose of

the labeling ban. To be sure, the Government’s interest…remains a valid goal. But the irrationality

of this unique and puzzling regulatory framework ensures that the labeling ban will fail to achieve

that end”); Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (“the facial underinclusiveness” of the

state’s restriction on speech “raises serious doubts about whether Florida is, in fact, serving ... the

significant interests [that it has] invoke[d] in support" of the policy…. [The State] must

demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly”).

While the ODH posits throughout its memorandum that “stopping the spread of COVID-

19” is the important or substantial governmental interest being advanced, e.g., Acton/Himes

Memorandum in Opposition, at 13, at present, the ODH has offered no evidence in support thereof.

While it certainly will be (or should be) addressed at the forthcoming hearing, at present, all that

the ODH has presently offered in support thereof is ipse dixit, not evidence, and, thus, certainly

not establishing such interest. See Eastern Greyhound Lines v. N.L.R.B., 337 F.2d 84, 88 (6th Cir.

1964)(“we are unable to accept this ipse dixit as a substitute for substantial evidence”).

When the threat of COVID-19 virus first arose in March 2020, it was generally recognized

and acknowledged that a significant number, if not most, people would eventually be exposed to

the COVID-19 virus. In fact, AMY ACTON acknowledged that “the entry [of the virus] will be

amongst us. We know forty and upwards percent of our population will eventually get this

[virus].” Thus, the governmental interest was not slowing the spread of COVID-19 for the sake

of slowing the spread but, rather, as stated by AMY ACTON herself, “slowing [the spread of the

virus]” in order to “keep[] the numbers low enough so we don’t overwhelm over hospital systems.”

Stated otherwise, AMY ACTON specifically tied the effort to slow the rate at which the virus

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spread to the availability of medical equipment: “there are only so many ventilators; there are only

so many eco machine.”

But even accepting arguendo that preventing the spread of COVID-19 in and of itself is

actually advances a substantial government interest, in order for a time, place or manner regulation

of speech to be narrowly tailored it must still “promote[] a substantial government interest that

would be achieved less effectively absent the regulation” and is not “substantially broader than

necessary to achieve [that] interest”. With broad swarths of the State of Ohio already opened (and,

those blessed early on with the moniker of being “essential” by the decree of AMY ACTON being

open throughout the Reign of Decrees), significant human interaction has already been occurring.

To continue to isolate less favored (or those with less lobbying power in Columbus) with an on-

going decree no longer advances any claimed government interest.

Finally, ODH also fails to satisfy its burden of showing that its prohibition on festivals,

including The Country Fest, leaves open ample alternative channels for communication of the

information. ODH bears the burden not only of showing the existence of these ample alternative

channels. But the watching a YouTube video or recording on a computer screen (as ODH

suggests) is a small and insufficient substitute for the stirring of emotions and feelings that exudes

from being present at a live event. Furthermore, live in-person events further advance and allow

for the spontaneity of the speech interaction between performer and audience, and vice versa.

Nothing the ODH offers affords an adequate substitute therefor.

Equal Protection – Large gatherings are allowed for some type of First Amendment
activities while prohibited for others

Having claimed that the ban on music festivals is justified by an effort to prohibit “large

crowds of people from engaging in numerous human interactions and spending lengthy amounts

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of time in close proximity”, Acton/Himes Memorandum in Opposition, at 19 (Doc. No. 15,

PageID#237), the ODH conveniently ignores this characterization when it comes to the equal

protection challenge. Obviously, such convenient obliviousness to the ODH’s prior

characterization is necessary because, under the decrees issued by AMY ACTON, “large crowds

of people” can “engag[e] in numerous human interactions and spend[] lengthy amounts of time in

close proximity” so long as they are engaged in speech in the form of political protest or other

approved speech but they cannot do so if they are engaged in speech in the form of a partaking in

a musical festival. Through exemptions and exceptions, the decrees of AMY ACTON have placed

certain First Amendment activities in a preferred and preferential standard. As such strict scrutiny

is applicable and cannot be met.

The substantive due process goes not to the First Amendment rights but rights that
are foundational to us as Americans and as human beings

After claiming there is no First Amendment rights implicated herein, the ODH attempts to

negate the substantive due process claim by asserting that, because the First Amendment provides

a textual source of constitutional protection herein, there can be no substantive due process claim.

Acton/Himes Memorandum in Opposition, at 26-27 (Doc. No. 15, PageID#244-45).

Notwithstanding such linguistic gymnastics – first arguing there is no First Amendment right

implicated but then changing course and contending that because the First Amendment is

implicated there is no substantive due process right – the ODH misses the point. The substantive

due process claim arises not out of freedom of speech (which includes music festivals); instead,

the substantive due process claim is independent of the First Amendment.

The nature of the substantive due process interest of fundamental freedom and liberty at

issue, i.e., the ability of the people to interact with one another as human beings, be they family,

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friends, neighbors or even strangers, as opposed to enjoying such liberties solely at the whim or

noblesse oblige of a government official, exists independent of any particular provision of the Bill

of Rights. The historical and fundamental nature of such an interest that is foundational to us as

Americans and as human beings was adequately developed in the Complaint ¶¶153-61 (Doc. No.

1, PageID#33-34). The ODH has simply, though conveniently, chose to ignore them, both here

and during the Reign of Decrees.

CONCLUSION

Federal courts have a “virtually unflagging obligation...to exercise the jurisdiction given

them,” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

Thus, the Supreme Court has repeatedly reiterated that federal courts “have no more right to

decline the exercise of jurisdiction which is given, than to usurp that which is not given,” and that

“[t]he one or the other would be treason to the Constitution.” New Orleans Pub. Serv., Inc. v. New

Orleans, 491 U.S. 350, 358 (1989)(quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404

(1821). “No higher duty rests upon this Court than to exert its full authority to prevent all violation

of the principles of the Constitution.” Downes v. Bidwell, 182 U.S. 244, 382 (1901)(Harlan, J.,

dissenting). It is to the federal courts that citizens look for the protection and vindication of their

fundamental rights. And in this case, the fundamental rights of the Plaintiffs have and continue to

be threatened and infringed; the immediate aid of the Court is required.

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Respectfully submitted,

/s/ Curt C. Hartman

Curt C. Hartman (0064242)
The Law Firm of Curt C. Hartman
7394 Ridgepoint Drive, Suite 8
Cincinnati, OH 45230
(513) 379-2923
hartmanlawfirm@fuse.net

Christopher P. Finney (0038998)

Rebecca Heimlich (0064004)
Finney Law Firm LLC
4270 Ivy Point Blvd., Suite 225
Cincinnati, OH 45245
(513) 943-6655
chris@finneylawfirm.com
rsh@finneylawfirm.com

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing will be served upon all counsel of record through the
Court’s ECF filing system on the date of filing:

/s/ Curt C. Hartman

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