1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0267p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R ONALD P HILLIPS ; R AYMOND T IBBETTS ; R OBERT J. V AN H OOK , Plaintiffs-Appellants ,

v

.
M IKE D E W INE , Attorney General of the State of Ohio; J OHN R. K ASICH , Governor of the State of Ohio; D ONALD M ORGAN , Warden of the Southern Ohio Correctional Facility; G ARY C. M OHR , Director of the Ohio Department of Rehabilitation and Corrections, Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 15-3238

Appeal from the United St ates District Court for the Southern District of Ohio at Columbus. No. 2:14-cv-02730—Gregory L. Frost, District Judge. Argued: April 19, 2016
Decided and Filed: November 2, 2016
Before: NORRIS, SILER, a nd STRANCH, Circuit Judges.

_________________ COUNSEL

ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellants. Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Timothy F. Sween ey, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, Davi d C. Stebbins, Allen L. Bohnert, Sharon Hicks, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, Lisa M. Lagos , OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellants. Tiffany L. Carwile, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
SILER, J., delivered the opinion of the court in which NORRIS, J., joined. STRANCH, J. (pp 17–35), delivered a se parate dissenting opinion. 

### >No. 15-3238 Phillips, et al. v. DeWine, et al. Page 2

_________________ OPINION

_________________ SILER, Circuit Judge. In this appeal, a gr oup of inmates sentence d to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information re lated to lethal injection. The di strict court dismissed some of their claims for a lack of standing and the remai nder for failure to state a claim. For the reasons stated below, we AFFIRM

.

I.
In December 2014, the Ohio General Assemblypassed Substitute House Bill No. 663 (“HB 663”) to address the confiden tiality of information related to lethal injection in Ohio. HB 663 contains four provisions rele vant to this appeal. First, under HB 663, the identity of
individuals and entities th at participate in the lethal injectio n process is treated as confidential and privileged under law; cannot be disclosed as a public record; and is not subject to disclosure during judicial proceedings, except in limited circ umstances (the “Confiden tiality Provision”). Ohio Rev. Code §§ 149.43(A)(1)(cc), 2949.221(B)–(C). 1 Second, HB 663 directs courts to seal

1 Section 149.43 specifically provides: (A) As used in this section: (1) “Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and sch ool district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533 of the Revised Code. “Public record” does not mean any of the following:

. . . . (cc) Information and records that are made confidential, privileged, and not subject to disclosure under divisions (B) and (C) of section 2949.221 of the Revised Code. In relevant part, § 2949.221 provides: (B) If, at any time prior to the day that is twenty-four months after the effective date of this section, a person manufactures, compounds, imports, transports, distributes, supplies, prescribes, prepares, administers, uses, or tests any of th e compounding equipment or components, the active pharmaceutical ingredients, the dr ugs or combination of drugs, the medical supplies, or the medical equipment used in the application of a lethal injection of a drug or combination of drugs in the administration of a death sentence by lethal injection as provided for in division (A) of section 2949.22 of the Revised Code, notwithstandi ng any provision of law to the contrary, all ofNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 3

records that contain information related to the identi ty of an individual or entity that participates in the lethal injection process unless “the court de termines that the record is necessary for just adjudication” (the “Rec ord-Sealing Provision”). Id. § 2949.222. If the court makes such a determination, it must hold a privat e hearing to review the record, and the record is subject to

the following apply regarding any information or record in the possession of any public office that identifies or reasonably leads to the identification of the person and the person’s participation in any activity described in this division: (1) The information or record shall be classifi ed as confidential, is privileged under law, and is not subject to disclosure by any person, state agency, governmental entity, board, or commission or any political subdivision as a public record under section 149.43 of the Revised Code or otherwise. (2) The information or record shall not be subject to disclosure by or during any judicial proceeding, inquiry, or process, except as described in division (B)(4) of this section or in section 2949.222 of the Revised Code. (3) The information or record shall not be subject to discovery, subpoena, or any other means of legal compulsion for disclosure to any person or entity, except as described in division (B)(4) of this section or in section 2949.222 of the Revised Code. (4)(a) If the information or record pertains to the manufacture, compounding, importing, transportation, distribution, or supplying of any of the items or materials described in division (B) of this section, the person or entity that maintains the information or record shall disclose the information or record to the Ohio ethics commission and the commission may use the information or record, subject to division (B)(1) of this section, only to confirm the following: (i) That the relationship between the person and the department of rehabilitation and correction is consistent with and compli es with the ethics laws of this state; (ii) That at the time of the specified conduct, the person has all licenses required under the laws of this state to engage in that conduct and the licenses are valid. (b) If the Ohio ethics commission receives any in formation or record pu rsuant to division (B)(4)(a) of this section, the commission shall complete its use of the information or record for the purposes described in that divi sion within fourteen days of its receipt and shall promptly report its findings to the director of rehabilitation and correction. (C)(1) If, at any time prior to the day that is tw enty-four months after the effective date of this section, an employee or former employee of the department of rehabilitation and correction or any other individual selected or designated by the director of the department participates or participated in the administration of a sentence of death by lethal injection, as provided for in division (A) of section 2949.22 of the Revised Code, subject to division (C)(2) of this section and notwithstanding any other provision of law to the contrary, the protections and limitations specified in divisions (B)(1), (2), and (3) of this section shall apply regarding any information or record in the possession of any public office that identifies or reasonably leads to the identification of the employee, former employee, or other individual and the employee’s, former employee’s, or individual’s participation in the administration of the sentence of death by lethal injection described in this division. (2) Division (C)(1) of this section does not apply with respect to information or a record that identifies or reasonably leads to the identification of the director of rehabilitation and correction or the warden of the state correctional institution in which the administration of the sentence of death takes place.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 4

further disclosure only if, “through clear and convincing eviden ce presented in the private hearing, [the court] finds that the person whose identity is protected appears to have acted unlawfully with respect to the pe rson’s involvement in the administration of a lethal injection.”
Id. § 2949.222(C). 2 Third, HB 663 prevents licensing authorities from taking disciplinary action against an individual or entity based on participation in the lethal injection process (the “Licensure-Immunity Provision”). Id. § 2949.221(E). 3 And fourth, HB 663 permits an individual or entity who has part icipated in the lethal injection process to bring “a civil cause of

2 Section 2949.222 provides in full: (A) As used in this section, “seal a record” means to remove a record from the main file of similar records and to secure it in a separate file that contains only sealed reco rds accessible only to the court. (B) The court promptly shall order the immediate sealing of records containing information described in division (B) or (C) of section 2949.221 of the Revised Code and the person’s participation in any activity described in the particular division, whenever the records come into the court’s possession. (C) If a record containing information described in division (B) or (C) of section 2949.221 of the Revised Code and the person’s participation in any activity described in the particular division, is subpoenaed or requested by a court order, the director of rehabilitation and correction shall provide the record. If the court determines that th e record is necessary fo r just adjudication, the court shall order the director to ap pear at a private hearing with a copy of the record and any other relevant evidence. The information is not otherwis e subject to disclosure unless the court, through clear and convincing evidence pr esented in the privat e hearing, finds that the person whose identity is protected appears to have acted unlawfully with respect to the person’s involvement in the administration of a lethal injection as contemplated by the first paragraph of division (B) and by division (C)(1) of section 2949.221 of the Revised Code.
3 Section 2949.221(E) provides: If a person or entity that, at any time prior to the day that is twenty-four months after the effective date of this section, participates in, consults regarding, performs any function with respect to, including any activity described in division (B) of this section, or provides any expert opinion testimony regarding an execution by lethal injection conducted in accordance with division (A) of section 2949.22 of the Revised Code is licensed by a licensing authority, notwithstanding any provision of law to the contrary, the licensing authority shall not do any of the following as a result of that participation, consultation, performance, activity, or testimony by the person or entity: (1) Challenge, reprimand, suspend, or revoke the person’s or entity’s license; (2) Take any disciplinary action against the person or entity or the person’s or entity’s licensure.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 5

action against any person who discloses the identity and participation in the activity in violation of this division” (the “Civil-Action Provision”). Id. § 2949.221(F). 4

Shortly after HB 663 was pass ed, Ronald Phillips, Raymond Tibbetts, and Robert Van Hook, prisoners sentenced to death in Ohio (the “Plaintiffs”), filed an action in federal court against Ohio Governor John Kasic h, Ohio Attorney General Mike DeWine, Director of the Ohio Department of Rehabilitation an d Correction Gary Mohr, and Wa rden of the Southern Ohio Correctional Facility Donald Morgan (the “Defendants”), challenging HB 663’s constitutionality. 5 The Plaintiffs brought several claims: (1) a claim that HB 663 unconstitutionally burdens speech (the “Free-Speech Claim”); (2) a claim that HB 663 creates a regime of unconstitutional prior re straint (the “Prior-Restraint Claim”); (3) claims that HB 663 violates the Plaintiffs’ equal-pr otection and due-process rights, as well as their right of access to the courts (the “Equal-Protection, Due-Process, and Right-of-Court-Acce ss Claims”); and (4) a
claim that HB 663 denies the Plaintiffs constitutionally protected access to government proceedings (the “Right-of-Access-to -Government-Proceedings Claim”).
Mohr and Morgan moved to dismiss the claims against them for lack of subject-matter jurisdiction under Federal Rule of Civil Procedur e 12(b)(1) and for failure to state a claim upon which relief can be granted under Rule 12(b)(6). They argued that the Plai ntiffs lacked standing to challenge the Licensure-Immunity Provision and the Civil-Action Provision. In addition, Mohr and Morgan asserted that HB 663’s provi sions do not suppress the Plaintiffs’ speech

4 Section 2949.221(F) provides in full: A person may not, without the approval of the di rector of rehabilitation an d correction, knowingly disclose the identity and participation in an activ ity described in the particular division of any person to whom division (B) of this section applies and that is made confidential, privileged, and not subject to disclosure under that division or of an employee, former employee, or other individual to whom division (C)(1) of this section applies and that is made confidential, privileged, and not subject to disclosure under that division. Any person, employee, former employee, or individual whose identity and participation in a specified activity is disclosed in violation of this division has a civil cause of action against any person who discloses the identity and participation in the activity in violation of this division. In a civil action brought under this division, the plaintiff is entitled to recover from the defendant actual damages, punitive or exemplary damages upon a showing of a willful violation of this division, and reasonable attorney’s fees and court costs.
5 This action was initially joined by a fourth inmate, Grady Brinkley, but he did not participate in this appeal.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 6

because they only “limit the information that the State will provide to th e public,” and that HB 663 is not an unconstitutional prior restraint because it simply “mak[es] information confidential” and “does nothing to restrain the exercise of a First Amendment right.” Mohr and Morgan also claimed that the Plaintiffs failed to state an equal-protection, due-process, access-tothe-courts, or access-to-government-proceedings cl aim. Governor Kasich and DeWine moved to dismiss under Federal Rule of Civil Procedure 12( b)(1) for lack of subj ect-matter jurisdiction, claiming that the Eleventh Amendment barred the Plaintiffs’ claims agai nst them. They also joined in the arguments raised in Moh r’s and Morgan’s motion to dismiss.
The district court granted the Defendants’ motions to dismiss. Phillips v. DeWine , 92 F. Supp. 3d 702, 705, 718 (S.D. Ohio 2015). After assuming for the sake of argument that the Eleventh Amendment did not bar the claims ag ainst Governor Kasich and DeWine, the court found that the Plaintiffs lacked standing to ch allenge the Licensure-Immunity Provision and the
Civil-Action Provision. Id. at 709–12. It reasoned that the Plaintiffs suffered only “conjectural or hypothetical injuries” rather than the “requis ite distinct and palpable injury” required under
Article III. Id. at 711.

In addition, the district court found that the Plaintiffs’ remaining claims were not plausible. The court read HB 663 as “simply cu t[ting] off the [Ohio] government as the source of . . . information” regarding Ohio’s execution procedures and “plac[in g] a government worker on the hook for acting as a source.” Id. at 713. Accordingly, the court found, the statute did not create an unconstitutional prior restraint. Id. at 713–14. The court also concluded that the Plaintiffs had no constitutional right to the inform ation they claimed they were being deprived of and that their First, Fifth, and Fourteenth Amendments claims failed because they were premised on such a right. Id. at 714–16. Therefore, the distri ct court dismissed the case. Id. at 718. 6 It also denied the Plaintiffs’ pending motions fo r a preliminary injunc tion and for expedited discovery as moot.

6 The court also addressed claims that the Plaintiffs made under the Ohio Constitution and found that they lacked merit. Phillips , 92 F. Supp. 3d at 717–18. On appeal, the Plaintiffs do not appear to challenge this determination, and, in any event, they have not ra ised arguments particular to the Ohio Constitution.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 7

II.
We review dismissals for lack of subject-ma tter jurisdiction, including those for lack of standing, de novo. Parsons v. U.S. Dep’t of Justice , 801 F.3d 701, 709 (6th Cir. 2015) (citing
Miller v. Cincinnati , 622 F.3d 524, 531 (6th Cir. 2010)). To th e extent we must reach a disputed
issue of fact that the district court resolv ed, however, we review for clear error. See Askins v. Ohio Dep’t of Agric. , 809 F.3d 868, 872 (6th Cir. 2016). Othe rwise, we construe the complaint in the light most favorable to the Plaintiffs and accept all well-pleaded factual allegations as true.
Barber v. Miller , 809 F.3d 840, 843 (6th Cir. 2015) (citing Thompson v. Bank of Am., N.A. , 773 F.3d 741, 750 (6th Cir. 2014)).
Likewise, we review de novo a grant of a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon wh ich relief can be granted. Stein v. Regions Morgan Keegan Select High Income Fund, Inc. , 821 F.3d 780, 785 (6th Cir. 2016) (citing Cataldo v. U.S. Steel Corp. , 676 F.3d 542, 547 (6th Cir. 2012)). Again, we constr ue the complaint in the light most favorable to the Plaintiffs and accept all well-p leaded factual allegations as true. Id. (citing Laborers’
Local 265 Pension Fund v. iShares Tr. , 769 F.3d 399, 403 (6th Cir. 2014)). To withstand a 12(b)(6) motion, “the complaint mu st contain ‘enough facts to stat e a claim to relief that is plausible on its face.’” Long v. Insight Commc’n s of Cent. Ohio, LLC , 804 F.3d 791, 794 (6th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007)).
Notwithstanding the district c ourt’s reasoning, we may affirm its dismissal of the case “on any ground supported by the record.” Haines v. Fed. Motor Carrier Safety Admin. , 814 F.3d 417, 423 (6th Cir. 2016) (quoting Bangura v. Hansen , 434 F.3d 487, 498 n.3 (6th Cir. 2006)).

III.

A.

At the outset, we must determ ine whether the Plaintiffs ha ve standing, and, if so, for
which of their claims. See Murray v. U.S. Dep’t of Treasury , 681 F.3d 744, 748 (6th Cir. 2012). Article III, Section 2 of the Constitution provides that federal courts may hear and resolve only “Cases” and “Controversies.” As a result, “a pl aintiff must demonstrat e standing for each claimNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 8

he seeks to press.” Davis v. Fed. Election Comm’n , 554 U.S. 724, 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 335 (2006)). To ha ve standing, a plaintiff must establish (1) an “injury in fact,” meaning “an inva sion of a legally protected interest [that] is (a) concrete and particularized and (b) ‘actual or imminent , not “conjectural” or “hypothetical”’”; (2) “a causal connection between th e injury and the conduct compla ined of,” i.e., the injury complained of must be “fairly . . . trace[able ] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court”; and (3) that it is “‘likely,’ as opposed to merely ‘speculati ve,’ that the injury will be ‘redressed by a
favorable decision.’” Lujan v. Defs. of Wildlife , 504 U.S. 555, 560 (1992) (alterations in original) (citations omitted). These elements ar e commonly referred to as the “injury-in-fact,” “causation,” and “redressability” requirements. See Sprint Commc’ns Co., L.P. v. APCC Servs.,
Inc. , 554 U.S. 269, 273 (2008). Under this standard, th e Plaintiffs lack standing to bring their Free-Speech and Prior-Restraint Claims.
The Plaintiffs attempt to show that they—as death row inmates—are the “object” of HB 663 and that they therefore have standing to challenge th e statute. In Lujan , the Supreme Court
indicated that when “the plaintiff is himself an object of the [ government] action . . . at issue . . . , there is ordinarily little ques tion that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” 504 U.S. at 561–62. But the Court distinguished scenarios where a pl aintiff is the “object” of a government action from cases in which “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation . . . of someone else .” Id. at 562. In these instances, “much more is needed” and standing “is ordinarily substantiall y more difficult to establish.” Id.
In support of their argument, the Plaintiffs cl aim that the “principal object” of HB 663 is “[t]he facilitation of the[ir] death[s].” HB 663 may have been enacted with this broad purpose in mind, but that is insufficient to make the Plaintiffs the “object” of the st atute within the meaning
of Lujan . Instead, the relevant question is whethe r the Plaintiffs are within the group of
individuals whose conduct th e statute regulates. See Lujan , 504 U.S. at 562; State Nat. Bank of Big Spring v. Lew , 795 F.3d 48, 53 (D.C. Cir. 2015). Upon examination, HB 663 plainly regulates third parties rather th an the Plaintiffs. As discus sed above, the Licensure-ImmunityNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 9

Provision prohibits licensing author ities from taking disciplinary action against an individual based on his or her participation in the lethal injection proce ss. Ohio Rev. Code § 2949.221(E). Because the Plaintiffs lack the capacity to cen sure, delicense, or ot herwise discipline anyone involved in the lethal-injection process, th ey are not the objects of this provision. 7 Likewise, the Record-Sealing Provision directs courts —not the Plaintiffs—to seal certain information. Id. § 2949.222. As for the Confidentiality Provision a nd the Civil-Action Provision, they prohibit or penalize the disclosure of the identity of participants in the execution process. See id. §§ 149.43(A)(1)(cc), 2949.221(B)–(C), (F). But the Pl aintiffs have not argued that they have information they are prevented from disclosing, and th ey have indicated that it is “unlikely” that they will obtain such identifying information. Thus, they are not part of the group whose conduct the provisions govern. As a result, the Pl aintiffs cannot claim st anding as the “objects”
of HB 663 under Lujan

. But this is not the end of the matter, because a plaintiff may have sta nding even if he is not the object of the relevantstatute, though it will be more difficult to show. See Lujan , 504 U.S. at 561–62. Nonetheless, the Plaintiffs’ remaining arguments fail to establish standing for their Free-Speech and Prior-Restraint Claims.
To establish standing for a free-speech claim, th e Plaintiffs generally must show that “the rule, policy or law in question has explicitly pr ohibited or proscribed conduct on the[ir] part.” Parsons v. U.S. Dep’t of Justice , 801 F.3d 701, 711 (6th Cir. 2015) (citing Clapper v. Amnesty
Int’l USA , 133 S. Ct. 1138, 1153 (2013); Nat’l Right to Life Political Action Comm. v. Connor , 323 F.3d 684 (8th Cir. 2003)). In the typical case, a statute must be enfor ced against the plaintiff before he may challenge its constitutionality, but pr e-enforcement is available in some contexts if “threatened enforcement [is] sufficiently imminent ”—that is, there is “a credible threat” that the provision will be enforced against the plaintiff. Susan B. Anthony List v. Driehaus , 134 S. Ct.

7 The Plaintiffs claim that the Licen sure-Immunity Provision prevents “any efforts to persuade licensing authorities to take disciplinary action against those particip ants who are licensed professionals for ethical violations or other reasons.” This is simply not the case. The provision does not prevent individuals from engaging in speech to licensing authorities; rather, licensing authorities cannot take disciplinary action regardless of these overtures. See Ohio Rev. Code § 2949.221(E).No. 15-3238 Phillips, et al. v. DeWine, et al. Page 10

2334, 2342 (2014). 8 Though they aver that HB 663 negati vely impacts their ri ght to free speech, the Plaintiffs have not claimed that they hold any information that the statute prevents them from disclosing, and they have averred that it is “unlik ely” that they will obtain such information. Moreover, they have not claimed that anyone has threated action against th em under the statute.
The district court concluded that the Plaintif fs could not have the Civil-Action Provision enforced against them because it created potentia l liability only for an individual who disclosed
“information obtained in anofficial capacity.” Phillips , 92 F. Supp. 3d at 712. But we need not
decide whether this is the corr ect reading of HB 663. Regardless of whether the statute could conceivably apply to the Plainti ffs, they have not shown a credible threat that any of its provisions could be enforced to prevent the Plaintiffs from e ngaging in protected speech. Therefore, any claimed injury is conjectural and hypothetical and will not satisfy the injury-infact requirement. See Clapper , 133 S. Ct. at 1147 (“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” (quoting Lujan , 504 U.S. at 565 n.2)). 9

As for the Prior-Restraint Claim, we have held that “the pr ospect of prior restraint and resulting self-censorship can itself constitute the required actual injury” under Article III. Prime Media, Inc. v. City of Brentwood , 485 F.3d 343, 351 (6th Cir. 2007). Nonetheless, “the requirement of an actual injury is not obvi ated by . . . [a] prior restraint claim.” Id. The

8 Because the Civil-Action Provision appears to grant a pr ivate right of action to d eath-penalty participants whose identity is disclosed, see Ohio Rev. Code § 2949.221(F), it is debatable whether the Plaintiffs could avail themselves of Susan B. Anthony List ’s standard in seeking pre-enforcement review, see MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 128–29 (2007) (“[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be en forced.”). But because the Plaintiffs cannot establish standing even under this more favorable standard, we need not resolve the question.
9 The Plaintiffs also argue that they have suffered in jury because they, or othe rs acting on their behalf, cannot attempt to persuade drug manuf acturers to cease participa tion in Ohio’s lethal in jection process without access to the information HB 663 prevents from being disclosed. As discussed ab ove, this injury is not the result of a “rule, policy[,] or law” that “has ex plicitly prohibited or proscribed conduct on the part of the [P]laintiff[s]” and therefore does not provide standing fo r the Plaintiffs’ Free-Speech Claim. See Parsons , 801 F.3d at 711. Nonetheless, this injury does provide standing for thei r Access-to-Government-Proceedi ngs Claim. The Plaintiffs essentially argue that they are entitled to know the identity of the drug manufacturers, that HB 663 prevents them from obtaining this informatio n, and that access to the manu facturers’ identity would reme dy their injury. This is sufficient to meet all three standing prongs for this claim. See Fisher v. King , 232 F.3d 391, 396 n.5 (4th Cir. 2000).No. 15-3238 Phillips, et al. v. DeWine, et al. Page 11

Plaintiffs must, therefore, show that they are in fact “subject to a prior restraint on protected expression” to establish a sufficient injury. Van Wagner Boston, LLC v. Davey , 770 F.3d 33, 38 (1st Cir. 2014); see also Brammer-Hoelter v. Twin Peaks Charter Acad. , 602 F.3d 1175, 1183– 84 (10th Cir. 2010) (“[W]e concl ude Plaintiffs do not have sta nding as to this alleged prior restraint. Plaintiffs have cited to nothing in the record indicating their sp eech or association was altered or deterred in any wa y by the code, nor have we fo und any such evidence in our de novo review of the record.” (footnote omitted)). Th e Plaintiffs allege that the Record-Sealing Provision is an unconstitutional prior restraint because it mandates the sealing of documents during litigation and that the Civi l-Action Provision is also a prior restraint because it grants the Director of the Ohio Department of Rehabilitation and Correction “unfettered discretion” to permit the disclosure of the ident ities of lethal-injecti on participants. But, as discussed above,
the Plaintiffs have not claimed that there is an y speech they are likely to engage in that would require prior approval or otherwise be impeded unde r these provisions. Thus , they have failed to establish that they are subject to any prior restraint that HB 663 conceivably imposes, and they have failed to show an injury-i n-fact to support this claim. See Van Wagner Boston , 770 F.3d at
38.
In their complaint, the Plaintiffs claim that “seriously botched lethal[-]injection executions” have occurred in Ohio, that they have “imminent execution dates,” and that they have challenged Ohio’s execution practices and prot ocols in the past. They aver that, as a result of HB 663, it is “more likely” that their executions will not meet legal standards. But it is not enough that the Plaintiffs’ executions be imminent, because a validly imposed death sentence that is properly carried out is not “an i nvasion of a legally pr otected interest.” Lujan , 504 U.S. at 560; see also Gregg v. Georgia , 428 U.S. 153, 169 (1976). While a deficient execution is a very serious matter, the existence of defi ciencies in this case is only conjectural or hypo thetical and is
therefore not imminent fo r Article III purposes. See Lujan , 504 U.S. at 564 n.2.

In addition, the Plaintiffs maintain that they have standing to challenge HB 663 as overbroad or facially invalid “even if [they] have not themselves suffered or been threatened with actual injury.” This argument simply lack s merit. Bringing an overbreadth claim does not give the Plaintiffs’ carte blanche to maintain a suit in federal court. When considering theseNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 12

claims, courts indeed relax certain standing doctrines because of the potential for an unconstitutionally overbroad law to “chill” protected speech—that is, the “judicial prediction or assumption that the statute’s very existence may cause others before the court to refrain from constitutionally protected speech or expression.” Prime Media , 485 F.3d at 349 (quoting Virginia v. Am. Booksellers Ass’n , 484 U.S. 383, 392–93 (1988)); see also Savage v. Gee , 665 F.3d 732, 740 (6th Cir. 2012). But this excepti on applies only to the prudential standing doctrines, such as the prohibition on third-part y standing, and not to those mandated by Article III itself, such as the injury-in-fact requirement. Prime Media , 485 F.3d at 350; see also Lujan , 504 U.S. at 560 (noting that injury in fact, caus ation, and redressability form “the irreducible constitutional minimum of standing ”). Therefore, “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future
harm.” Parsons , 801 F.3d at 711 (quoting Laird v. Tatum , 408 U.S. 1, 13–14 (1972)). As discussed above, the Plaintiffs have not satis fied the injury-in-fact requirement. In their complaint, they claim that HB 663 “chills the speech of those participants or former participants in Ohio lethal injection executi ons” who might have come to di sapprove of the death penalty. Whether or not this is the case, it constitutes on ly an allegation of a subjective chill, which is insufficient to satisfy Article III. See id.
Therefore, the Plaintiffs lack standing to bring their Free-Speech and Prior-Restraint
Claims.

B.
The Plaintiffs also argue that the districtcourt erred in dismissing their Right-of-Accessto-Government-Proceedings Claim. As a genera l matter, they claim that the First Amendment prevents state actors from removing from th e public domain information that “pertains to a government proceeding historically open to th e public and for which public access plays a significant positive role in the functioning of that process.” According to the Plaintiffs, an execution is such a proceeding. Nonetheless, the Plaintiffs have failed to state a valid claim.
The Supreme Court’s decision in Houchins v. KQED, Inc. , 438 U.S. 1 (1978), sets the baseline principle for First Amendment claims seeking access to information held by theNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 13

government. S.H.A.R.K. v. Metro Pa rks Serving Summit Cty. , 499 F.3d 553, 559 (6th Cir. 2007);
see also United States v. Miami Univ. , 294 F.3d 797, 820 (6th Cir. 2002). Houchins recognized that “[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act,” and “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.” 438 U.S. at 14–15 (plurality opinion).
An exception to Houchins ’s general rule exists. In a line of cases beginning with Richmond Newspapers v. Virginia , 448 U.S. 555 (1980), the Supr eme Court has recognized a right of access to certain crimin al proceedings and the documents filed in those proceedings. This court has extended this right of access to civil trials, Brown & Williamson Tobacco Corp. v.
F.T.C. , 710 F.2d 1165, 1178 (6th Cir. 1983), and plea agreements, United States v. DeJournett , 817 F.3d 479, 484–85 (6th Cir. 201 6). And it has used the Richmond Newspapers framework to analyze whether a right of access exists for university disciplinary proceedings, United States v.
Miami Univ. , 294 F.3d 797 (6th Cir. 2002), documents re lated to the issuan ce and execution of a search warrant, In re Search of Fair Fin. , 692 F.3d 424 (6th Cir. 2012), and deportation proceedings, Detroit Free Press v. Ashcroft , 303 F.3d 681 (6th Cir. 2002).

To be sure, this court has stated that the Richmond Newspapers standard could be used “to determine whether a First Amendment right of access exists in a wide variety of other contexts,” Fair Fin. , 692 F.3d at 429, but this pronounc ement was dicta. And, while Detroit
Free Press “question[ed] the vitality of the standard articulated in Houchins ,” it only did so “with respect to cases such as the one presently before [the c ourt]”—a request for public access to deportation proceedings. 303 F.3d at 694–95. The opinion then hedged on Houchins , finding that it may still be good law but th at it did not apply to “quasi-j udicial government administrative proceeding[s].” Id. at 696. Since Detroit Free Press , this court has treated Houchins as good law, see S.H.A.R.K. , 499 F.3d at 559—which, of course, it is, having never been overruled by the Supreme Court, see Agostini v. Felton , 521 U.S. 203, 237 (1997).

In cases similar to the one at bar, other circuits have engaged in a Richmond Newspapers analysis, but none of these decisions provides pa rticularly strong support for doing so here. In
Zink v. Lombardi , the Eighth Circuit applied the “experience and logic” test, but it did so onlyNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 14

“for the sake of analysis.” 783 F.3d 1089, 1112 (8th Cir.) (per curiam), cert. denied , 135 S. Ct. 2941 (2015). It did not decide whethe r the standard applied to the cl aims at issue. Similarly, in Wellons v. Commissioner, Geor gia Department of Corrections , the Eleventh Circuit nominally applied the “experience and logic” te st, but it did so only to addr ess the question as framed by the plaintiffs in that case. 754 F .3d 1260, 1266 (11th Cir.) (per curiam), cert. denied sub nom.
Wellons v. Owens , 134 S. Ct. 2838 (2014). The only d ecision to clearly find that the Richmond Newspapers framework applied under similar circ umstances was summarily vacated by a unanimous Supreme Court. See Wood v. Ryan , 759 F.3d 1076, 1081 (9th Cir.), vacated , 135 S. Ct. 21 (2014). Our decision is not strictly controlled by this summary decision, as the Supreme Court found only that the district court did not abuse its discretion indenying a motion for a preliminary injunction and did not decide whethe r the plaintiff failed to state a claim for access to government records. Ryan v. Wood , 135 S. Ct. 21, 21 (2014) (mem.). 10 Nonetheless, a unanimous Supreme Court saw fit to summarilyvacate—without briefi ng or argument—the
Ninth Circuit’s determination that a death-row in mate seeking state-held information related to the method of his execution “raised serious questi ons” as to whether he would prevail on a First
Amendment claim. Wood , 759 F.3d at 1086. This ruling raises grave doubts as to whether such a claim is legally cognizable in the first place.
Therefore, we, like the Eighth Circuit, find the dissent in Wood to be persuasive.
See Zink , 783 F.3d at 1113. The dissent found that the pl aintiffs “d[id] not actually assert a right of access to a governmental pr oceeding” as recognized by Richmond Newspapers and its

progeny. Wood , 759 F.3d at 1092 (Bybee, J., dissenting). Itrecognized that this right includes a related right to access documents “filed” in those proceedings, but also noted that “[the] right does not extend to every piece of information th at conceivably relates to a governmental proceeding, even if the governmental proceed ing is itself open to the public.” Id. Ultimately, Judge Bybee reasoned that this latter category of information is precisely what the plaintiffs sought and identified Houchins as supplying the prope r rule of decision. Id. at 1093.

10 Specifically, the Court reversed the Ninth Circuit’s findi ng that the plaintiff “rai sed serious questions as to whether a First Amendment right, in the context of a p ublic execution[], attaches to the specific information he request[ed].” Wood , 759 F.3d at 1086.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 15

It is worth noting that we have neither adopted nor rejected the Ninth Circuit’s position in California First Amendmen t Coalition v. Woodford , 299 F.3d 868, 877 (9th Cir. 2002), that the public has a right of ac cess to executions under Richmond Newspapers . We need not resolve that question today. The Plaintiffs do not seek public access to Ohio executions. Rather, their Right-of-Access-to-Government-Proceedings Clai m is premised on an assertion of a First Amendment right to “government information” th at “pertains to a government proceeding.” Neither this court nor the Supreme Court has ev er recognized a right so broad. While the public’s right of access under the First Amendment c overs certain records filed in and transcripts of a qualifying government proceeding, see DeJournett , 817 F.3d at 484, it does not follow that this right covers allinformation related to the proceeding. The right of access to government proceedings “is not a tool for judges to pry open the doors of state and fe deral agencies because they believe that public access to this type of in formation would be a good idea. It is a qualified right to certain ‘proceedi ngs and documents filed therein’ and nothing more.” Wood , 759 F.3d at 1092–93 (Bybee, J., dissenting). The information HB 663 prevents from disclosure is neither information of the type filed in a government proceeding nor its func tional equiva lent; the Plaintiffs simply seek information related to Ohio executions. Under these circumstances,
Houchins ’s general rule applies. See id. at 1093–94.
Finding that the Plaintiffs ha ve stated a valid claim under Richmond Newspapers would, of necessity, disregard the general applicability of Houchins and represent a significant—and unwarranted—expansion of the right of access unde r the First Amendment as developed by the Supreme Court and our prior decisions. Therefore, we conclude that the Pl aintiffs have failed to
state a claim for a violation of their right of access to government proceedings.

C.
On appeal, the Plaintiffs contend that the district court erred in dismissing their EqualProtection, Due-Process, and Right -of-Court-Access Claims. As th e basis for these claims, the Plaintiffs argue that HB 663 prevents them fro m bringing an effective challenge to Ohio’s execution procedures. Specifically, they maintain that HB 663 “denies [them] an opportunity to discover and litigate non-frivolous claims.” But no constitutional right exists to discover grievances or to litigate effectively once in court. Lewis v. Casey , 518 U.S. 343, 354 (1996); HillNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 16

v. Dailey , 557 F.3d 437, 439 (6th Cir. 2009 ). The Plaintiffs have not pointed to any decision recognizing claims similar to the ones they propose. In fact, federal c ourts have repeatedly rejected such theories. See Zink , 783 F.3d at 1108–09; Wellons , 754 F.3d at 1267; Sepulvado v.
Jindal , 729 F.3d 413, 420 (5th Cir. 2013); Williams v. Hobbs , 658 F.3d 842, 852 (8th Cir. 2011);
Giarratano v. Johnson , 521 F.3d 298, 306 (4th Cir. 2008); see also Jones v. Comm’r, Georgia Dep’t of Corr. , 812 F.3d 923 (11th Cir. 2016) (Marcus, J., concurring in the de nial of rehearing en banc) (rejecting an “abstract and inchoate du e process right to discover the identity of the source of the drugs and the name of the executioner so that [an inmate] may challenge [a state’s] execution protocol”). Therefore, the district court did not e rr in dismissing these claims. 11

D.
The Plaintiffs also maintain that, “[b]ecause the district court erred in dismissing the [c]omplaint, it also erred in denying as m oot the motions for preliminary injunction and expedited discovery.” As disc ussed above, however, the case was properly dismissed. When ruling on a matter disposes of an action in its enti rety, a district court is generally correct in denying all other pending motions as moot. See, e.g. , Miami Univ. Wrestling Club v. Miami
Univ. , 302 F.3d 608, 616 (6th Cir. 2002). Therefore, remand is not necessary to address the

now-moot matters.

AFFIRMED

.

11 In their reply brief, the Plaintiffs also argue that they have stated a plausible Equal-Protection claim because HB 663 “discriminates based on the exercise of a fundament al right,” namely “[p]ro tected speech by lethal injection opponents.” As discussed above, the Plaintiffs have not alleged that they themselves have been or will likely be prevented from engaging in protected speech by HB 663. Therefore, it is doubtful that they have standing to pursue such a claim. Nonetheless, we need not reso lve this issue because the Pl aintiffs have waived their argument by failing to raise it in the opening brief. United States v. Hendrickson , 822 F.3d 812, 830 (6th Cir. 2016).No. 15-3238 Phillips, et al. v. DeWine, et al. Page 17

_________________ DISSENT

_________________ JANE B. STRANCH, Circuit Judge, dissenti ng. In January 2014, Ohio executed Dennis McGuire with a lethal injection of midazola m and hydromorphone. At the time, no state had ever attempted an execution with this combination of drugs. McGuire’s lawy ers tried to stay the execution, arguing—unsuccessfully—that the untested method presented a substantial risk of causing McGuire severe pain, and thus violated the Eighth Amendment. The State of Ohio promised a painless execution, pointing to the testimony of an anesthesiologist who, in the months after the execution, would decide to terminate his contr act with the state. It took 25 minutes for McGuire to die, and witnesses re ported that “[t]he process . . . was accompanied by movement and gasping, snorting and choking sounds.” Erica Goode, After a Prolonged Execution in Ohio, Questions Over ‘Cruel and Unusual’ , N.Y. Times, January 17, 2014, at A12. The priest who accompanied McGuire would later wr ite, “I came out of that room feeling that I had witnessed something ghastly.”
This horrifying tale of an execution gone wrong underscores what is at stake in this litigation. Ohio has not carried out an execution since it botched McGuire’s, in part because it has been unable to obtain the drugs needed for lethal injection. Plaint iffs, inmates under death sentence, attribute this to successful public advo cacy: “Speech opposed to lethal injection as a means of capital punishment has persuaded various actors essential to that process to cease their participation . . . .” HB 663 is the Ohio legislatur e’s answer to this problem. Plaintiffs allege that HB 663 silences their side of the public debate by assuring that the identities of all participants in an execution, pa rticularly the drug manufacturer s, will be strictly confidential— anonymity enforced through punitive civil sanc tions against anyone who discloses their identities. Plaintiffs challenge the constitutionality of HB 663.
There can be no doubt: HB 663 will obstruct scrutiny of Ohio’s execution protocol. I find this deeply troubling. We must not forg et that, just four years ago, based on Ohio’s “persistent failure or refusal . . . to follow its own written execution protocol,” we found it necessary “to monitor every execution on an ad hoc basis” because Ohio could not be “trusted toNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 18

fulfill its otherwise lawful duty . . . .” In re Ohio Execution Protocol Litig. , 671 F.3d 601, 602 (6th Cir. 2012). HB 663 will im pede both discovery and monitori ng of the violations that we
condemned.
The lead opinion affirms dismissal of plai ntiffs’ various claims based on standing or
failure to state a claim. So we do not reach the constitutionality of HB 663 today, though I admit great misgivings about this law. Instead, we ad dress a more limited question: Did the district court commit error by foreclosing this cons titutional inquiry before it was underway?
Yes, in three respects. Firs t, the district court wrongly concluded that plaintiffs lacked standing to challenge the civil act ion provision. Specifically, plai ntiffs have standing to raise their First Amendment right to receive information under Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748 (1976). Second, in evaluating plaintiffs’ First Amendment right of access to execution proc eedings and documents, the district court failed to apply the Supreme Court’ s “experience and logic” test. See In re Search of Fair Fin. , 692 F.3d 424, 429–30 (6th Cir. 2012); Detroit Free Press v. Ashcroft , 303 F.3d 681, 695 (6th Cir. 2002). Applying the proper test , plaintiffs’ allegations are mo re than sufficient to state a claim. Lastly, the district court dismissed pl aintiffs’ due process claim prematurely. While plaintiffs may not state a due process claim under an access-to-courts theory, they can do so under a procedural due process theory. I therefore respectfully dissent.
A. Standing
The lead opinion concludes that plaintiffs do not have standing to challenge HB 663’s civil action provision. This provision allows any person or entity who has participated in an Ohio execution—including private persons who manufactured, compounded, imported, transported, distributed, supplie d, prescribed, prepared, administ ered, used, or tested lethalinjection drugs, equipment, or other related me dical supplies—to bring “a civil cause of action against any person who discloses [their] identity and participation in the activity.” Ohio Rev. Code § 2949.221(F). The majority observes that “[ p]laintiffs have not argued that they have information they are prevented from disclosing”—t hat is, they have not alleged that the civilaction provision deters them fr om speaking. (Maj.Op. at 9.) Thus, the majority concludes,No. 15-3238 Phillips, et al. v. DeWine, et al. Page 19

plaintiffs “are not part of the group whose conduc t the provision[] govern[s]” and “cannot claim standing as the ‘objects’ of HB 663 . . . .” ( Id .)
I disagree. It is true that plaintiffs have not alleged that the ci vil action provision deters them from disclosing information. But the Supr eme Court has long recognized that, in addition to the right to speak, the First Ame ndment demands a corollary right to receive information and
ideas. See Va. State Bd. of Pharmacy , 425 U.S. at 756–57 (citing “numerous” Supreme Court decisions acknowledging the right to receive information and ideas); Allentown Mack Sales & Serv., Inc. v. N.L.R.B. , 522 U.S. 359, 386–87 (1998) (Rehnqui st, J., concurring) (“Our decisions have concluded that First Amendment pr otection extends equally to the right to receive information . . . .”). The right to receive info rmation “follows inelucta bly” from the speaker’s right to communicate information and, “[m]ore impor tantly, . . . is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” Bd. of
Educ. v. Pico , 457 U.S. 853, 867 (1982). It is derive d, in other words, from the First Amendment’s role “not only . . . in fostering indi vidual self-expression but also . . . in affording the public access to discussion, debate, and th e dissemination of information and ideas.” Id. at
866.
To have standing to raise a right to receive in formation claim, a plain tiff must allege that, but for the challenged restriction, a person w ould be willing to speak. A willing speaker engenders protection beyond his own voice. “Free dom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection affo rded is to the communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy , 425 U.S. at 756; see also Am. Civil Liberties
Union v. Holder , 673 F.3d 245, 255 (4th Cir. 2011) (obs erving that the First Amendment “provides standing to persons who are ‘willing listeners’ to a willing speaker who, but for the restriction, would c onvey information”); United States v. Wecht , 484 F.3d 194, 203 (3d Cir. 2007) (concluding that a third party has standing to raise a right to receive information claim “as long as the third party can demonstrate that an individual subject to the [challenged restriction] would speak more freely if the [res triction] is lifted or modified”); Competitive Enter. Inst. v. U.S. Dep’t of Transp. , 856 F.2d 1563, 1566 (D.C. Cir. 1988) (“ It is well established that petitioners, as listeners, can suffer injury from government regulations that prevent speakersNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 20

from saying what the listeners wish to hear.”); In re Dow Jones & Co., Inc. , 842 F.2d 603, 606– 08 (2d Cir. 1988) (same). “The purpose of the ‘willi ng speaker’ requirement . . . is . . . to ensure that there is an injury infact that would be redre ssed by a favorable decision.” Wecht , 484 F.3d
at 203.
In the present case, plaintiffs allege that “[i]t sometimes happens that persons who have participated in lethal inject ion executions will, upon ceasing th eir participation for whatever reason, come to believe from the perspective of their first-hand e xperience in the process that the death penalty is flawed and shoul d no longer be used.” (R. 1, Pa geID 41, ¶ 106(g).) Plaintiffs put flesh on that claim by identifying “two former recent directors” of the Ohio Department of
Rehabilitation and Corrections and “a recent form er Ohio Attorney General” as persons who “have experienced such a conversion.” ( Id. ) By imposing “severe financ ial penalties,” plaintiffs allege, HB 663 “chills the speech of those participants or former participants in Ohio lethal injection executions who experience such a convers ion, with the effect being that such persons who would otherwise be willing to speak publicly about their experi ences will not be willing to do so . . . .” ( Id. ) Plaintiffs have alleged the existence of willing speakers who, but for the civil penalty provision, “would speak more freely.” Wecht , 484 F.3d at 203; see also FOCUS v. Allegheny Cty. Court of Common Pleas , 75 F.3d 834, 839 (3d Cir. 1996) (concluding that it is “reasonable to infer” from allegations that litigan ts “were willing to talk at some point prior to the entry of the gag orders” that they “are willing but restrained speakers”); In re Dow Jones &
Co. , 842 F.2d at 607 (concluding that “[i]t is hard . . . to imag ine that there are no willing speakers” because “[w]ithout them there would be no need for a restraining order”). At this stage of the litigation, that is suffi cient to establish plaintiffs’ standing to raise a right to receive
information claim.
Once standing is established, plaintiffs allege a viable claim that the civil action provision is an unconstitutional content-based speech restriction. 1 “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or

1 Plaintiffs have also alleged that “in its practical operation” the civil penalty provision “goes even beyond mere content discrimination, to actual viewpoint discrimination.” Sorrell v. IMS Health Inc. , 564 U.S. 552, 565 (2011). Even if HB 663 were not content based on its f ace, these allegations would be sufficient to survive a motion to dismiss. ( See R. 1, PageID 3, 30, 39–40, 49–50, ¶¶ 3, 93, 106(d)–(e), 136.)No. 15-3238 Phillips, et al. v. DeWine, et al. Page 21

message expressed.” Reed v. Town of Gilbert , 135 S. Ct. 2218, 2227 (2015). A court should “consider whether a regulation of speech ‘on its face’ draws distinction based on the message a speaker conveys.” Id. Facially content-based laws ar e subject to st rict scrutiny. Id. This is because “[l]imiting speech based on its ‘topic’ or ‘subject’ favors those who do not want to disturb the status quo,” and thus poses “the same dangers as laws that regulate speech based on viewpoint.” Id. at 2233 (Alito, J., concurring); see also id. at 2238 (Kagan, J., concurring) (“[W]e have recognized that su ch subject-matter restrictions, ev en though viewpoint-neutral on their face, may ‘suggest[ ] an attempt to give one side of a debatable public question an advantage in expressing its views to the people.’”) (citation omitted). In making this determination, the court may also consider the la w’s “stated purposes” and “practical effect.”
Sorrell v. IMS Health Inc. , 564 U.S. 552, 565 (2011).
The civil action provision here singles out sp eech “bearing a particular message”: the identity of state actors or private persons who manufacture, compound, import, transport, distribute, supply, prescribe, prepar e, administer, use, or test leth al-injection drugs, equipment, or other related medical supplies. To determine whether a person’s identity has been disclosed, one must look to the content of the speech, not simplythe time, place, or manner in which it occurs.
HB 663 is thus content based on its face.
Even though some of the disclosures barred by HB 663 “could be considered a kind of governmental information,” Sorrell , 564 U.S. at 568, plaintiffs’ challenge to the civil action provision is not reduced to a claim for access to governmental pr oceedings and information. Where “no private party face[s] a threat of le gal punishment,” a law may be characterized as “nothing more than a governmental denial of access to information in its possession.” Id. But where the law “prohibit[s] a speaker from co nveying information that the speaker already possesses,” and the speaker faces criminal or civil penalties for violating the law, “[a]n individual’s right to sp eak is implicated.” Id

. By its plain terms, § 2949.221(F) creates a cau se of action against any person—whether a

state actor or a private person or entity—who discloses the identity of a participant in a lethalNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 22

injection. 2 The law does not different iate based on the source of the information; a private person or entity may be sued even if the disclosed information is obtained by legal means. So, for example, if the employee of a compoundi ng facility discovers ra mpant violations of Ohio’s execution protocol, the employee cannot go public without risking a financially ruinous lawsuit. Or, if a newspaper publishes an ar ticle that links a compounding facility to the manufacture of lethal injection drugs, the compounding facility may sue the newspaper for disclosing its identity—even if the newspaper ascertained this information by legal means.
Plaintiffs’ prior-restraint claim also appears vi able. “A ‘prior restraint’ exists when the exercise of a First Amendment right depends on the prior approval of public officials.” Bronco’s Entm’t, Ltd. v. Charter Twp. of Van Buren , 421 F.3d 440, 444 (6th Cir. 2 005). “It is settled by a long line [of Supreme Court decisions] that an ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.” FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 226 (1990) (quoting Shuttlesworth v. City of Birmingham , 394 U.S. 147, 151 (1969)).
HB 663 does not create an official system of permits or licenses for disclosing the identities of participants in state executions. It does, however, immunize persons who disclose such information from a civil action if—and only if—one of the defendants here, the Director of the Ohio Department of Rehabilitation and Corr ections, approves the disclosure. The law does not set forth any criteria for ma king this determination, nor does it impose any constraint on the
Director’s exercise of discretion. It thus appears to invest a government offi cial with “unbridled discretion” to decide who may convey this info rmation. That is suffi cient to state a priorrestraint claim.

2 The district court avoided this question by reading § 2949.221(F) to authorize suit against state actors alone. This is a strained and, in my view, erroneous inte rpretation of § 2949.221(F). Because the majority concludes that plaintiffs do not have standing under either interpretation, that reading does not resolve this issue.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 23

B. Right of Access to Execution Proceedings and Documents
The lead opinion concludes that plaintiffs have failed to state a First Amendment claim based on their right of access to execution proceed ings and documents. (Maj.Op. at 12.) The majority’s analysis turns on its decision to apply Houchins v. KQED, Inc. , 438 U.S. 1 (1978), rather than the “experience and logic” test set out in Press-Enterprise Co. v. Superior Court of
Cal. , 478 U.S. 1 (1986). I think it was error to use the Houchins analysis. Both Supreme Court and Sixth Circuit precedent indicate that the experien ce and logic test applies to this case. If that test is used, there is little question that plaintiffs have st ated a right of access claim.
1. The experience and logic test applies here.

In Press-Enterprise Co. , the Supreme Court announced that the First Amendment right of access applies to a particular proceeding or record if it has “historically be en open to the press and the general public” and “public access plays a significant positive role in the functioning of the particular process in question” —and we have adopted that test. See In re Search of Fair Fin. , 692 F.3d at 429–30 (citing Press-Enterprise Co., 478 U.S. at 8) (adopting and applying the experience and logic test to an issue of access to documents invol ving a search warrant). If a proceeding or document “passes this ‘experience and logic’ test, a qualified right of access
attaches to it.” Id. at 429. Where a qualified right exists, a docume nt may be sealed only if it is “essential to preserve higher values” and is “narrowly tailored” to serve those ends. Id.

In In re Search of Fair Finance , we explained that though th e experience and logic test originated in criminal proceedings, it has been used “to determine wh ether a First Amendment right of access exists in a wide variety of other contexts,” includi ng “whether ther e is a right of access to civil trials, administrative hearings, deportation proceedings, and municipal planning meetings.” Id. ; see also Detroit Free Press , 303 F.3d at 695 (observing that the “experience and logic test” has been applied to a number of different proceedings “outside the criminal judicial context, including admini strative proceedings”); United States v. Miami Univ. , 294 F.3d 797, 822–23 (6th Cir. 2002) (observing that “[u]niversity disciplinary proceedings are not criminal proceedings,” but nevertheless applying the “experi ence and logic test” to “determin[e] whether a qualified First Amendment right of access attach es”). And, we added, it “has been furtherNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 24

extended beyond hearings and meetings to determine whether there is a First Amendment right
of access to documents and other materials.” In re Search of Fair Fin. , 692 F.3d at 429–30; see also United States v. DeJournett , 817 F.3d 479, 484 (6th Cir. 2016) (observing that the Sixth Circuit has applied the e xperience and logic test to judicial records). Th us, we concluded, it was “appropriate to apply the test . . . in consid ering whether there should be access to documents involved with the issuing and exec ution of a search warrant.” In re Search of Fair Fin. , 692 F.3d at 430. In reaching this conclusion, we “reject[ ed] the government’s suggestion that there is no First Amendment right of access to search warrant doc uments . . . due to the fact that the search warrant application process is an investigative rather th an a criminal proceeding.” Id.
If the experience and logic te st applies to agriculture department voter lists, university student disciplinary proceedings, municipal pl anning meetings, and state agency records, see In re Search of Fair Fin. , 692 F.3d at 430; Detroit Free Press , 303 F.3d at 695, thenit applies to execution proceedings and documents. No circuit has concluded otherwise. The only circuit to consider whether the public has a right of access to view executions—the Ninth Circuit—applied the experience and logic test and concluded that “the public enjoys a First Amendment right to
view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inex tricably intertwined with the process of putting
the condemned inmate to death.” Cal. First Amendment Coal. v. Woodford , 299 F.3d 868, 877 (9th Cir. 2002).
All three circuits to address the question in the present case, moreover, have applied the experience and logic test. See Zink v. Lombardi , 783 F.3d 1089, 1112–13 (8th Cir. 2015); Wood v. Ryan , 759 F.3d 1076, 1081–83 (9th Cir. 2014); Wellons v. Comm’r, Ga. Dep’t of Corr. , 754 F.3d 1260, 1266 (11th Cir. 2014). The Ninth Ci rcuit held that, unde r the expe rience and logic test, the plai ntiff had “raised serious que stions as to whether a First Amendment right, in the context of a public executions, attaches to the specific information he requests.” Wood , 759 F.3d at 1086. It thus “grant[ed] a conditional pr eliminary injunction, stay ing [the plaintiff’s] execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execu tion and (b) the qualifications of the medical personnel.” Id. at
1088.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 25

The Eighth and Eleventh Circuits applied this test and did not find a right of access. Those cases, however, are distinguishable and do not support the proposition that a right of
access is barred as a matter of law. The decision in the Eighth Circuit, Zink , turned on pleading
deficiencies. See 783 F.3d at 1112 (observing that the plai ntiffs had “fail[ed] to allege a ‘tradition of accessibility’ to that information” and “ha[d] not alleged facts or cited authority establishing that the particular s of execution methods have ‘historically been open to the press and general public’”). It thus simply stands for the proposition that, when the experience and logic test applies, plain tiffs must set forth allega tions that satisfy the test to survive a motion to
dismiss.

The decision in the Eleventh Circuit, Wellons , held that “the district court did not abuse its discretion in concluding that [the plaintiff] is not entitled to injunctive relief on [the right of access] claims.” 754 F.3d at 1267. Cr ucial to the district court’s decision, however, was the fact that the plaintiff had asserted a personalrather than public right of access: the district court acknowledged “First Amendmen t implications involved in the openness of government operations,” but concluded that “the cases [the plaintiff] relies upon turn on the public’s, rather than the individual’s, need to be in formed so as to foster debate.” Id. at 1266. Here, by contrast, plaintiffs are raising both their right of access and that of the public. 3

2. The majority’s reliance on Houchins is misplaced.

In Detroit Free Press , we provided three reasons why “ Houchins [was] not the applicable
standard to resolve the First Amendment claim of access” in that case; all apply equally here.
See Detroit Free Press , 303 F.3d at 694. Firs t, “[t]he issue before the Court in Houchins . . . was ‘whether the news media have a constitutional right of access to a county jail, over and above that of other persons , to interview inmates and make s ound recordings, film s and photographs for publication and broadcasting by ne wspapers, radio and television.’” Id. (quoting Houchins , 438 U.S. at 3). In Detroit Free Press and the present case, by contra st, the plaintiffs “do not

3 The procedural posture also makes this case different from Wellons . 754 F.3d at 1263. In Wellons , the plaintiff needed to show a likelihood of success on the merits; in the present case, plaintiffs need only sh ow that they have pled sufficient allegations to state a claim. See id.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 26

claim a ‘special privilege of access’” to informati on about the source of lethal-injunction drugs.
Id. The plaintiffs here expressly seek access for themselves and the public.

Second, we observed that “ Houchins rested its holding on the Court’s interpretation of the press clause,” which is “distinct from the speech clause”—the clause at issue here. Id. Indeed, the Supreme Cour t’s “line of cases from Richmond Newspapers to Press-Enterprise
II

”—which were decided after Houchins and interpreted both the speech and press clauses— “recognize that there is in fact a limited constitutional right to some government information and also provide a test of general applicab ility for making that determination.” Id. at 700.
Third, we questioned whether Houchins even remained good law. We pointed to Justice
Stevens’s concurrence in Richmond Newspapers , which emphasized that Houchins “represented a plurality opinion of the Court.” Id. at 694. As such, its conclusions were “neither accepted nor rejected by a majority of the Court.” Id. Indeed, “[i]n repeatedly applying Richmond Newspapers ’s two-part ‘experience and logic’ test,” we reasoned, it would seem “clear that the [Supreme] Court has since move d away from its position in Houchins .” Id. at 695. As for the “policy reasons underlying the Court’s plurality opinion in Houchins ,” we added, the experience and logic test “sufficiently addresses all of the Houchins Court’s concerns for the implications of a constitutionally mandated general right of access to government information.” Id. at 694-95. For all of these reasons, we “question[ed] the vitality of the standard articulated in Houchins .”
Id. at 694.

Houchins does not control the present case for one more reason: unlike the regulation in
Houchins , HB 663 shrouds the sources of lethal-injection drugs in absolute secrecy. The Supreme Court has indicated that a regulation that completely bars access is materially distinct from a regulation that only pa rtially restricts access. The Houchins Court, for example, took care to emphasize that the regulation did not “prevent [the newspape rs] from learning about jail conditions in a variety of ways, albeit not as conven iently as they might prefer.” 438 U.S. at 15. It noted that the newspapers could “receive lette rs from inmates criticizing jail officials and reporting on conditions,” could “interview those who render the legal assistance to which inmates are entitled,” as well as “seek out former inmates, visitors to the prison, public officials, and institutional personnel . . . .” Id . at 14. In specifying these avenues—avenues unavailableNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 27

here—the Court cited to an earlier decision in which it expressed skepticism of any “attempt by the State to conceal the conditions in its prisons or frustrate the press’ investigation and reporting
of those conditions.” Pell v. Procunier , 417 U.S. 817, 830 (1974).

The Houchins Court’s analysis was fashioned to a ddress a regulation th at only partially
restricted access. It effectiv ely concluded that the access alr eady available to the newspapers satisfied the First Amendment. HB 663 presen ts an entirely different—and more alarming—
restriction because “there exist no alternative means . . . to learn about” the source of lethalinjection drugs. Detroit Free Press , 303 F.3d at 696 n.12. Our case law teaches that Houchins is the wrong framework for this case. Under our precedent, this panel should apply the experience and logic test, the Supreme Court’s test for determ ining whether the public is entitled to access at all. That test is the proper determin er of whether HB 663 is unconstitutional.

3. Wood does not raise “grave doubts” about plaintiffs’ claim.
The lead opinion suggests that the Su preme Court’s summary disposition in Wood “raises grave doubts as to whether [a right-of-access] claim is legally cognizable in the first place.” (Maj.Op. at 14.) This reads too much into the Court’s three-sentence orde r. The plaintiff in
Wood , a death row inmate scheduledfor lethal injection, had requested information from the Arizona Department of Corrections on the source of the lethal-injection drugs that would be used in his execution, information about the qualifications of those persons who would administer the drugs, and information and documents related to how the Department developed its lethalinjection protocol. 759 F.3d at 1079. The Department denied this request and the plaintiff sued, arguing that “by deliberately c oncealing lethal injection info rmation, the Department ha[d] violated [his] . . . First Amendment . . . right to be informed about the manner in which Arizona implements the death penalty . . . .” Id. He requested a preliminary injunction “preventing the Department from carrying out his execution un til it provide[d] him with the information he request[ed].” Id. The district court denied the preliminary injunction. Id.
As discussed above, the Ninth Circuit applie d the experience and logi c test on appeal and granted a preliminary injunction. Id. at 1086–88. Two days later, the full court denied rehearing en banc. Judge Kozinski dissented, concluding that if the plaintiff in Baze v. Rees , 553 U.S. 25No. 15-3238 Phillips, et al. v. DeWine, et al. Page 28

(2008), “could not get a stay of execution under the Eighth Amendm ent,” then the plaintiff in
Woods “certainly is not entitled to one under the First.” Id. at 1102 (Kozinski, J., dissenting from denial of rehearing en banc ). Judge Kozinski did not addres s the underlying merits of the First Amendment right-of-access claim; he addressed onl y whether the plaintiff was entitled to a stay
of execution. 4

Judge Kozinski’s dissent tracked an argumen t made by Judge Bybee, who dissented from the majority opinion. Judge Byb ee argued that even if the plaintiff’s First Amendment claim had merit, he was not entitled to a stay of execution:
No one doubts that [the plaintiff] “has a strong interest in being executed in a constitutional manner.” Beaty v. Brewer , 649 F.3d 1071, 1072 (9th Cir. 2011). But the right asserted by [the plainti ff] differs from the constitutional challenges often raised by inmates f acing execution. The First Amendment right of public access inheres in all of the members of th e public, and not just the inmate who has been sentenced to death . . . . It is not self-evident that the First Amendment right will be irreparably harmed if that information is not disclosed before [the plaintiff’s] execution, but is instead disclosed only if the view espoused by [the plaintiff] ultimately prevails after the cas e is fully litigated. Whatever benefit society derives from being able to disc uss who made the drug and who injected it would presumably still inure to the public if that conversation occurred after [the plaintiff] has been executed.

Id. at 1100–01 (Bybee, J., dissenting). Notably, th e majority itself acknowledged that “[t]here are special considerations in a capital case when a plaintiff request s a stay of execution,” that the government has a “strong interest in enforcing its criminal judgments,” and that “filing an action that can proceed under § 1983 does not entitle the co mplainant to an order staying an execution
as a matter of course.” Id. at 1080.

In a three-sentence orde r issued on July 22, 2014—one da y before the plaintiff’s scheduled execution—the Supreme Court vacate d the Ninth Circuit’s judgment granting a conditional preliminary injunction. Ryan v. Wood , 135 S. Ct. 21 (2014). The Court did not address the merits of the plai ntiff’s underlying First Amendment claim. Rather, the Court appears to have concluded, as did Judge Kozinski , that even if an inmate has a viable First

4 The other dissenters questioned the majority’s application of the experience and logic test (as well as the standard for granting a preliminary injunction), but did not argue that the experience and logic test did not apply. Id. at 1103–05 (Callahan, J., dissenting).No. 15-3238 Phillips, et al. v. DeWine, et al. Page 29

Amendment right-of-access claim, this claim is insufficient to grant a stay of execution. The Court’s summary disposition in Wood does not raise “grave doubts” about whether plaintiffs’ First Amendment right-of-access claim is legally cognizable.
4. Plaintiffs’ allegations state a Fi rst Amendment right-of-access claim.
Plaintiffs satisfy both parts of the experience and logic test. First, their complaint sets forth a number of allegations that the proceeding or record has “historically been open to the press and the general public,” In re Search of Fair Fin. , 692 F.3d at 429, including:

 The information necessary to refute the mi sconception that lethal injection provides an “enviable” “quiet death” has come fr om various traditionally open sources and proceedings including litigation/evidenti ary hearings, discovery, public records requests, media reports, and investigations , among other sources. (R. 1, PageID 17, ¶ 55.)

 There is no history or trad ition—let alone a long history or tradition—in Ohio of restricting speech against those persons a nd entities who have chosen, for their own personal, political, economic, or other re asons, and who are compensated for their participation, to supply drugs and other es sential execution supplies or to otherwise perform professional services for purposes of lethal injection executions. To the contrary, in fact, there is a history of openness in Ohio ’s execution process. (R. 1, PageID 52, ¶ 148.)

 Key participants have always been subject to public scrutiny and their identities never shielded, with the exception of some DRC employees actually on the execution team (for whom existing protections, even if proper, are already sufficient without HB 663). For example, the identities of the follo wing direct and indirect participants in Ohio’s lethal injection executions have ne ver been shielded but would be now under the Challenged Provisions of HB 663: (i) medical and other expe rts and consultants retained by the State; (ii) drug supplie rs and pharmacists used by the State for securing the execution drugs; (iii) doctors, nur ses, and mental health professionals conducting the required checks and assessmen ts on an inmate in the minutes, hours and days leading up to an execution; (iv) doctors and nurses directly participating in executions (including, for example, the doct or who participated in [the] attempted execution [of death row inmate Romell Broom]); (v) doctors assessing the inmate’s status during an execution and pronouncing death; (vi) pharmacists, lawyers, and other professionals involved in providi ng the required periodic trainings and rehearsals for the execution team members; and (vii) many other direct participants in executions including DRC upper management pe rsonnel at levels below the director, DRC lawyers (e.g., during Broom’s attempted execution), DRC’s spokespersons and press officers, and the DRC employees who create the contemporaneous executionNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 30

timeline for an execution or otherwise gene rate documents related to administration of the execution protocol. (R. 1, PageID 52–53, ¶ 149.)

 This public right of access has constitutional protection because . . . executions and associated documents and information have historically been ope n to the press and general public, in Ohio and in other states . . . . (R. 1, PageID 64, ¶ 204.)
Plaintiffs’ complaint also se ts forth a number of allegati ons that “public access plays a significant positive role in the functioning of the particular process in question,” In re Search of
Fair Fin. , 692 F.3d at 429, including:

 This public right of access ha s constitutional protection because . . . the public access plays a significant positive role in the f unctioning of the execution process. (R. 1, PageID 64–65, ¶ 204.)

 An informed public debate is critical in determining whether a specific execution method comports with this country’s evol ving standards of decency, and even more so at this time in history where, for r easons addressed throughoutthis Complaint, there is intense public interest in whethe r lethal injection is capable of being administered in a humane manner. (R. 1, PageID 65, ¶ 205.)

 Given the factual backdrop of the ma ny recent botched executions and the unavailability of execution drugs manufactured by the companies of big-Pharma, more information about the drugs used in le thal injections can help an alert public make more informed decisions about the evolving standards of decency in this country surrounding lethal injection. Know ing the source of the drugs, and the qualifications, credentials, competence, prot ocols, and reputation of the drug makers and other professionals involved in the ex ecution process, among other information, allows the public to discern whether Defe ndants are using safe and reliable drug manufacturers, and would give the public the basic confidence, beyond the State’s generic assurances, that executions will be ad ministered safely and pursuant to certain qualifications and standards. (R. 1, PageID 65, ¶ 206.)
Finally, plaintiffs allege that the Ohio secrecy law is not justified by a compelling interest, and that the law is not narrowly tailored. Because these allegations are sufficient to state a First Amendment right-of-access claim, I would revers e the district court’s order dismissing this
claim.

C. Procedural Due Process
The lead opinion disposes of plaintiffs’ due process claim in a single paragraph, citing to
cases in which inmates have raised a constitution al right of access to the courts. Specifically, theNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 31

majority points to Lewis v. Casey , 518 U.S. 343 (1996), where the Supreme Court held that an inmate’s right of access to courts does not include conferral of “sophisticated legal capabilities.”
Id. at 354. Inmates have a right to the reso urces “need[ed] in order to attack their sentences . . . and . . . challenge the conditions of their confinement,” th e Court explained, but the Constitution “does not guara ntee inmates the wherewithal to transform themselves into litigating engines capable of filing everything fro m shareholder derivative actions to slip-and-fall
claims.” Id. at 355.
This is not a case about extraneous litigation: it is a case about death-sentenced inmates seeking information required “in order to attack their [death] sentences.” Id. The appropriate analysis of plaintiffs’ due pro cess claim employs the procedural due process framework set forth in the line of cases beginning with Goldberg v. Kelly , 397 U.S. 254 (1970), and Mathews v. Eldridge , 424 U.S. 319 (1976). This framew ork is outlined in detail in Jones v. Commissioner , 812 F.3d 923 (11th Cir. 2016), where a bare majority of judges—six of th e Eleventh Circuit’s eleven judges—voted to deny rehearing en banc of a decision upholding Georgia’s Lethal Injection Secrecy Act. Four dissenting judges joined Judge Wilson’s excellent dissent, which concludes that the Eleventh Circuit’s rejection of “due process challenges to the Secrecy Act without applying [the Goldberg and Mathews procedural due process] framework” is “legal error” that “is fatal to [its] jurisprudence.” Id. at 935 (Wilson, J., dissenting). The majority here
makes the same error.
Procedural due process analysis proceeds in tw o steps. First, the court must determine “[w]hether any procedural prot ections are due,” which “depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’” Morrissey v. Brewer , 408 U.S. 471, 481, 483–90 (1972) (specifying minimum due process re quirements for parole revocation). “The Fourteenth Amendment’s Due Process Clause prot ects persons against de privations of life, liberty, or property; and those who seek to invoke its procedural protecti on must establish that
one of these interests is at stake.” Wilkinson v. Austin , 545 U.S. 209, 221, 224 (2005) (finding a protected liberty interest in avoiding state assignment to a supermax prison). Thus, the Due Process Clause requires procedur al protections when the loss is both weighty and “within theNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 32

contemplation of the ‘liberty or property ’ language of the Fourteenth Amendment.” Morrissey , 408 U.S. at 481.

Once the court determines that an interest is entitled to procedural protections, “the question remains what process is due.” Id . To answer this questi on, the court “evaluate[s] the sufficiency of particular procedures ” using the framework set forth in Mathews , which entails weighing the following factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of suchinterest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, incl uding the function invol ved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Wilkinson , 545 U.S. at 224–25.
In the present case, the interest at stake is the right to be executed in a manner that comports with the Eighth Amendment’s prohi bition on “cruel and unus ual punishments.” Glossip v. Gross , 135 S. Ct. 2726, 2737 (2015). As Judge Wilson observes in his dissent in
Jones , the Supreme Court has recognized far less we ighty interests as “gri evous losses” entitled to procedural protections, such as property interests in continui ng civil servant employment and receiving public utilities. See Jones , 812 F.3d at 937–38 (Wilson, J., dissenting). A prisoner’s “right to be free from an unconstitutional inva sion of his body is a liberty interest under the
Fourteenth Amendment.” Jones, 812 F.3d at 938 (citing Union Pac. Ry. Co. v. Botsford , 141 U.S. 250, 251 (1891); Washington v. Harper , 494 U.S. 210, 229 (1990) (holding that “[t]he forcible injection of medicati on into a nonconsenting [prisoner’s] body represents a substantial interference with that person’s liberty” under the Fourteenth Amen dment)). To vindicate this interest, an inmate must have a fair opport unity to challenge unconstitutional methods of
execution. See Hall v. Florida , 134 S. Ct. 1986, 2001 (2014) (“The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohib its their execution.”) American jurisprudence has long recognized the “heightened concern for fa irness and accuracy that has characterized our review of the process re quisite to the taking of a human life . . . .” Ford v. Wainwright , 477 U.S.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 33

399, 410, 414 (1986) (holding that the Eighth Amendm ent prohibits inflicting the death penalty on a prisoner who is insane). The plaintiffs are thus entitled to procedural protections that guarantee “the basic ingredient of due proce ss, namely, an opportunity to be allowed to
substantiate a claim befo re it is rejected.” Id.
The next question, then, is whether HB 663 depr ives plaintiffs of pr ocedural protections to which they are entitled. To make this determinati on, the court must weigh the Mathews factors. Plaintiffs have allege d that “[b]y concealing critical in formation about the specific drugs
the State intends to use to execute [them],” HB 663 “frustrates [their] ability to fairly and effectively litigate their claims relating to the constitutionality of their executions by lethal injection,” and thus “denies Plain tiffs their rights not to be depr ived of their li ves without due process of law.” (R. 1, PageID 62–63, ¶¶ 196, 198.) 5 Indeed, the dist rict court itself acknowledged that HB 663 would “unquestionabl y handicap[] Plaintiffs’ pursuit of their protocol challenge in related litigation.” Phillips v. DeWine , 92 F. Supp. 3d 702, 716 (S.D. Ohio 2015). Noting that the harsh result from its d ecision “is a matter of some unease,” the court explained,
In execution protocol cha llenges, the law tells death-sentenced inmates to bring evidence into the courtroom while conc urrently upholding a scheme that places the bulk of select evidence outside the reach of the inmates. The necessary is also the withheld: you must give us that wh ich you cannot have to give . In order to challenge the use of a drug that will be used to execute them, inmates must explain why use of that drug presents a ri sk of substantial harm. But the inmates are not allowed to know from where th e drug came, how specifically it was manufactured, or who was involve d in the creation of the drug.

Id. at 716–17. Plaintiffs have thus properly allege d a life or liberty interest in a constitutional execution, protected by due process requirements, and that their interest is placed at risk of erroneous deprivation by HB 663.
I agree with Judge Wilson and the four judges who joined him that “[i]t is simply not difficult to conceive of a cost-effective pro cedure through which [Ohio] may account for death row prisoners’ due process right s while protecting its stated interests” in “continuing to

5 In their parallel suit against Ohio’s execution protocol, In re Ohio Execution Protocol (16-3149), plaintiffs explain at length how this secrecy undermines their constitutional claims.No. 15-3238 Phillips, et al. v. DeWine, et al. Page 34

administer capital punishment in a fiscal ly and administratively viable manner.” Jones , 812 F.3d at 940. For example, Ohio could ban public rel ease of the information, but provide prisoners limited access under protective order. Id. Based on the allegations in the complaint, then, I think
that the Mathews factors weigh heavily for the plaintiffs and they have stated a due process
claim.

D. CONCLUSION
The decision today undermines constitutional protect ions in several particulars. It denies standing to bring a First Amendment claim based on the right to receive information, barring the plaintiffs from obtaining information essential to pursuit of their claims and denying the public information necessary to, and historically used for, developing the evolving standards of decency that govern our society and shou ld inform our law. Second, itdenies the plaintiffs’ First Amendment claim to right of access to executi on proceedings and docume nts, a claim fairly stated under the applicable experience and logic te st. Finally, it fails our due process test: it rejects a claim without providi ng (actually while prohibiting) an opportunity to prove it.
The complaint properly alleges speech that speakers desire to utter and both the plaintiffs and the public desire to hear. It alleges that HB 663 is a dire ct reaction to anti-death-penalty speech that historically has been available to the public—speech that had proven successful in the court of public opinion. And it alleges the in herent wrong of imposing evidentiary standards an inmate must meet to protect his right to be executed in compliance with the Eighth Amendment, then denying him th e opportunity to challenge secrec y laws that prohibit him, or anyone on his behalf, from obtaining that inform ation. It is simply not enough to acknowledge “unease” with or the “absurdity” of that constitutional catch 22. And there is no need here to engage in such conscience-soot hing rhetoric because plaintiffs’ allegations state a claim.
Death penalty cases are not just about puni shing a convicted person. These cases are also about protecting the functioning of our justice system, which for the reasons stated above envisions a forum for addressing the clai ms made in this litigation, and perhaps other litigation over state lethal injection secrecy laws. It is my belief that our criminal justice system does—and should—provide death-sentenced in mates a fair opportunity“to show that theNo. 15-3238 Phillips, et al. v. DeWine, et al. Page 35

Constitution prohibits their execution” before we reject their claims. See Hall , 134 S. Ct. at
2001.
Accordingly, I respectfully dissent.