The U.S. Supreme Court declined on April 22, 2025, to block a district court’s ruling that found that Ohio’s fair and truthful requirement for ballot initiative petitions violates the First Amendment. This law requires the Ohio Attorney General to determine whether submitted petition summaries are fair and truthful statements of the proposed law before advancing the petition to the Ohio Ballot Board. The case, Brown v. Yost, raises a broader legal question: Are rules for reviewing ballot initiative summaries subject to free speech protections, or are these rules just part of the state’s lawmaking process—the governmental mechanics that do not implicate the First Amendment?
The ballot initiative sponsors argued that the state’s review of petition summaries under the fair and truthful requirement imposed government restrictions on political speech, as the standards were based on subjective and content-based judgments, and were therefore subject to the First Amendment. Attorney General Dave Yost (R) argued that the initiative process is an exercise of the state’s legislative power, not an expression of private speech rights, and that the U.S. Constitution does not require states to offer an initiative process. And, for states that do, he said the Constitution gives them considerable discretion to regulate that process.
The plaintiffs in the case, Cynthia Brown, Carlos Buford, and Jenny Sue Rowe, are sponsors of a proposed ballot initiative concerning civil lawsuits against the state and legal immunities, including qualified immunity. Their campaign is called the Ohio Coalition To End Qualified Immunity. Sponsors filed their ballot initiative petition six times over 16 months, between February 27, 2023, and July 5, 2024. Yost rejected the proposed petition each time, finding that the summaries violated the fair and truthful requirement.
District Court for the Southern District of Ohio
On March 14, 2025, District Court Judge James Graham ruled that the fair and truthful requirement violated the First Amendment. Judge Graham wrote, “[The] fair-and-truthful review requirement might appear at first glance to be a neutral regulation of election mechanics – a step that anyone attempting to amend the constitution must complete, irrespective of the person or purpose behind the amendment. But further examination raises a red flag.” He stated the law “subjects one component of plaintiffs’ speech… to the state’s editorial review.” He described the fair and truthful requirement as a content-based regulation, rather than a content-neutral rule, such as a signature threshold. He said there were no standards to guide or restrain “the Attorney General’s consideration of what is fair or truthful,” “[he] made subjective evaluations of what was fair and truthful,” and “[a]s even defendant acknowledges… the state ‘effectively controls the message because the Attorney General has final approval authority.’”
Court of Appeals for the Sixth Circuit
Attorney General Yost requested that the order be stayed pending appeal, and the district court granted this request. He appealed the ruling to the U.S. Sixth Circuit Court of Appeals, which rejected the request, and then to the U.S. Supreme Court.
A three-judge panel of the Sixth Circuit Court of Appeals issued a 2-1 opinion on April 9. Judge Karen Moore delivered the opinion, with Judge Andre Mathis concurring. Judge John K. Bush dissented. Moore wrote, “… ‘on grounds increasingly dubious,’ the Attorney General rejected the summary as not fair and truthful. … This is the very definition of editorial control.” Judge Bush, dissenting, said, “When 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… The First Amendment poses no barrier to the Ohio Attorney General’s involvement in the certification process. That is because the First Amendment 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.”
U.S. Supreme Court
Yost, in his appeal to the U.S. Supreme Court, argued that the court should take up the case because “the courts of appeals ‘diverge in fundamental respects’” on “what First Amendment standard, if any, governs laws regulating state initiative processes… On such an important constitutional issue, that level of variation is unacceptable.” He also stated, “The plaintiffs say that Ohio’s process for ballot-initiative summaries violates their First Amendment rights. That argument fails because laws that regulate the initiative process itself (as opposed to laws that regulate supporters’ speech about initiatives) do not implicate the First Amendment. … But the First Amendment confers no positive ‘right to use governmental mechanics to convey a message.’ Nor does the First Amendment promise that States will even have an initiative process. For those States that do, the Constitution affords them ‘considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.”
On April 10, 2025, Justice Brett Kavanaugh stayed the district court’s order pending further court action. On April 22, 2025, the U.S. Supreme Court denied the request. The order stated that Justices Kavanaugh, Clarence Thomas, and Samuel Alito would have granted the request.
Before the U.S. Supreme Court, three entities filed amicus curiae briefs supporting Attorney General Yost: Restoring Integrity and Trust in Elections (RITE), the Separation of Powers Clinic, and the State of Idaho.
Yost proceeded to approve the petition on April 22 and said, “The attorney general’s office will work closely with the General Assembly on legislation to reform the ballot initiative summary process to protect the integrity of Ohio’s elections and freedom of speech.” He described the ruling as holding that “Ohio’s nearly century-old ballot initiative process was unconstitutional.” Yost also said he would seek to have his office’s appeal dismissed.
Next, the ballot initiative must be approved by the five-member Ohio Ballot Board, which reviews whether the proposal complies with the state’s single-subject rule. Supporters must then submit at least 413,487 valid signatures by July 2, 2025, for the initiative to appear on the November 4, 2025, ballot.
You can access the court rulings here: