The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few weeks ago, Patrick Kabat (Chandra Law), Carolyn Allen, and I filed an appeal to the Ohio Supreme Court, asking it to agree to review a very interesting—and, in my view, troubling—Ohio Court of Appeals decision. (Thanks to our local counsel Donald Screen, also at Chandra Law, and law students Jack Maib, Malek Khawam, and Brian Asquith, who worked on the memorandum. Brian and Malek are members of the First Amendment, Media & Entertainment Law Practicum at the Cleveland-Marshall College of Law, and Jack is a summer law clerk at the Chandra Law Firm.)
Here's the backstory: TJ Dow was a Cleveland city councilman from 2008 until he was defeated for reelection in 2017. He then ran unsuccessfully for the Ohio House of Representatives in the 2018 Democratic primary.
While he was still on the City Council, he had some run-ins with two local community activists, Clark and Brendan Nelson. So he got a "civil stalking protection order" ordering them "not to be present within 500 feet" of him. The Court of Appeals affirmed the order, though it narrowed the distance to 50 feet.
But the basis for the order, it seems to me, was constitutionally protected speech of the sort that happens routinely in local politics. Here is what his application for the protection order said:
[Appellants] on or about May 15, 2017 at 10:00 a.m. at the Cuyahoga County Board of Elections located at 2925 Euclid Avenue, Cleveland, Ohio 44115 approached me bent over while I was sitting in the chair, she put [her] finger in [my] face stating, "I'm going to get you!" Then she proceeded to walk outside the board room. I waited a moment then walked out of the board meeting and was met by verbal threats from [appellants] stating, "[You're] going to get it, wait and see." This culminated over years of stalking by [appellants], they have come to meetings, acted unruly, looked at me in a menacing way and [have] driven by my house multiple times with the purpose of intimidation.
The Court of Appeals also summarized the other evidence:
According to a precinct committee person, during a precinct meeting at Oriana House, appellants [the Nelsons] and a group of individuals ran through the facility, "hollering and disrupting the meeting that we just had to close it out." They were also disruptive at another meeting at the Sight Center.
According to appellee [Dow], the disruptive behavior continued from April 2014 through November 2014, which prompted the ward club to hire security due to appellants' conduct. Appellee stated that "they blurt stuff out and they will reference me." They were "disrespecting" him, making comments, and threatening comments under their breath. They would enter into his personal space and look at him in a threatening way, but did not ask a question or appear to have a legitimate reason for approaching him. Appellee spoke to a police liaison about the matter and obtained security for subsequent meetings. Appellee submitted as exhibits various invoices to pay for off-duty police officers, who were present at eight meetings.
Appellee also testified that during a meeting at the Sight Center in 2016, appellants and their group were so disruptive that the police officer at the meeting terminated it, and the Sight Center banned the city from holding further meetings there. By 2016, the meetings were moved to the third district police department community room due to security issues.
Additionally, according to appellee, in 2017, appellants filed a challenge with the Board of Elections disputing his Cleveland residency, and claiming that he was living and working in Florida. In April 2017, in response to the residency challenge, appellee wrote a letter to the Board of Elections in which he stated that he believed that he had been menaced by appellants. He wrote:
[T]he complaints seemed to be filed in retaliation for doing my due diligence of following up on several residents' complaints. The complaints were concerning drug activity at [Appellants' residence]. My follow-up on these allegations was not personal. I did what any councilperson would do if these allegations were brought to their attention.
Appellee acknowledged that the drug allegations had not been substantiated. Later, C.N. filed a public records request for appellee's communications involving them, their property, and the ward club meetings.
Appellee testified that after the residency challenge was rejected by the Board of Elections, B.N. "got very mad," so she confronted appellee, put her finger in his face, and threatened that "we're going to get you." According to appellee, when he walked toward the exit, appellants threatened him again, saying, "we're going to get you." As he attempted to leave, they and another individual continued to go after him, but then changed course when a police officer escorted him outside. Appellee stated that he was in fear of physical harm.
Appellee also testified that on multiple occasions, appellants drove by his house, making faces, or giggling and laughing, all in an attempt to taunt or intimidate him. He stated that appellants drove by his house twice in May 2017 and looked at him in a menacing and very angry way that made him afraid.
The Nelsons and their witnesses denied much of this, for instance saying that their past speech was never unduly disruptive but at most "vociferous" and "a little loud"; likewise, "[a] resident testified that he has attended numerous city meetings and has never observed appellants behaving in an unruly fashion, and has never witnessed angry or menacing behavior."
But even if the trial court believed Dow and his witnesses, none of this, it seems to me, rises to the level of constitutionally unprotected "true threats" of violence. "We're going to get you" often refers to threatening political defeat (or perhaps legal action), not violence; there seems to be no finding in the record that these statements were intended to be threatening violence, or would even have been reasonably perceived as that. And while the trial court found that Dow had "met his burden of proving by a preponderance of the evidence that appellants acted in a pattern of activity knowingly causing appellee to believe that he was being threatened or causing him mental distress," that also can't be enough—both given the reported facts of the case, and given that the finding is just of threat or mental distress. Speech that merely causes mental distress to one's elected official is fully constitutionally protected.
It's conceivable that some of the disruptions in 2014 and 2016—which sound like people making loud noise—violated some content-neutral rules barring disruptions of public meetings; but there seems to be no evidence that the Nelsons were convicted or even charged for such supposed misconduct, and thus no finding that the behavior rose beyond the level of normally raucous public debate. Certainly this is not enough to justify an order in 2017 that the Nelsons stay 500 feet away from their city councilman, or even 50 feet away.
The court of appeals never concluded that the Nelsons were shown to have been threatening—rather, it at times said that Dow had "met his burden of proving by a preponderance of the evidence that appellants acted in a pattern of activity knowingly causing appellee to believe that he was being threatened or causing him mental distress" (emphasis added). But surely an elected official can't order constituents to stay away from him—including in public places—simply based on a finding that they had caused him "mental distress."
Indeed, President Judge McCormack's dissenting opinion strikes me as quite right here:
The [Nelsons] … [are] asserting that their First Amendment rights of assembly and to petition their government have been unconstitutionally infringed. I agree with the appellants' argument and would dissolve the court order because it violates one of our most essential tenets of the American form of democracy.
There is no question that the relationship between the parties and their discourse had deteriorated to a full-time confrontational approach. They did not like each other, and their mutual objectives were to civically overcome their adversaries. Unlike the conclusion of the trial court, I do not find the evidence proves physical harm was intended or likely. Nor would I find that "mental distress" as envisioned by the statute was proven. This dispute was all about robust urban politics. It was not, at its heart, a strictly personal threatening vendetta.
As Americans, we mostly resolve our policy differences by casting ballots. Rarely do people become so exasperated with each other that they sense no way out but physical conflict. Elected officials want to be liked, respected, and successful at election time. That is not always possible. In times of high stress, with much at stake, citizens and their elected officials can experience the pains of change.
Having citizens in close quarters tell you as an elected official that you have failed and will be replaced is stressful, frightening, and almost never what officials want to hear. It is through the brilliance of our system that differences can be tested against each other systemically rather than through violent conflict.
I find it deeply troubling should this precedent stand. Yes, relations in this Cleveland ward are very strained. Civility is sorely tested. Absent a much clearer palpable threat, this order should be dissolved. Respectfully, I dissent.
Here is an excerpt from our memorandum supporting the petition:
[I.] This case involves substantial constitutional questions.
Half a century ago, the U.S. Supreme Court held that courts must separate protected speech (like political hyperbole) from unprotected conduct (like threats) when applying statutes. In Watts v. United States (1969), a man threatened to shoot President Lyndon Johnson if he was given a gun. But to preserve the higher values embodied in the First Amendment, the Supreme Court held that even that speech could not constitutionally satisfy the elements of a statute that prohibited threatening the President, because in context it was not a "true threat" of violence:
"We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' The language of the political arena, like the language used in labor disputes is often vituperative, abusive, and inexact."
This Court has faithfully enforced those values. As discussed below, it has enforced Constitutional protections forbidding courts from imposing prior restraints on political speech, like the injunctions at issue did by prohibiting the Nelsons from speaking at public hearings. It has enforced Constitutional protections forbidding courts from restricting access to public forums based on speakers' identities or the content of their speech, which the injunctions also did. And this Court has enforced the First Amendment's settled requirement that reviewing courts must conduct an independent, de novo review of the full record in First Amendment cases, to prevent any abrogation of the speech liberties upon which our democracy relies. For when the courts address First Amendment issues, "the judge is the primary representative of the public interest," and censorship harms not only its targets, but their would-be listeners—the citizens whose ballots lack democratic legitimacy if cast upon a government-censored debate.
The decision below flouts every one of these substantive constitutional protections. And though this Court promulgated the very forms Dow used to obtain ex parte and permanent civil protective orders under R.C. 2903.214(C) and (D)(1), this Court has never been called to adjudicate the constitutional protections embodied by the statutory requirements that applicants prove an "immediate and present danger to the person to be protected," R.C. 2903.214(D)(1), and that the supposed offenders "engag[ed] in a pattern of conduct" to "knowingly cause another person to believe that the offender will cause physical harm to the other person … or cause mental distress to the other person." R.C. 2903.211 (emphases added).
This Court has never been called to square this language with the constitutional questions the decision below creates. Constitutionally construed, the statutes parse conduct from speech and prevent thin-skinned legislators from wielding supposed "distress" at repeated and protected criticism as a tool of unlawful censorship. But the Court of Appeals uncritically accepted a trial court's determination that fully protected political hyperbole proves criminal stalking—as though repeatedly participating in public hearings is not a civic virtue, but evidence of a crime. It did not conduct an independent and constitutionally adequate review of the record, which shows that the Nelsons' repeated attendance at public hearings, and speech repeatedly directed at the legislator who represents them, was fully protected First Amendment expression at all stages.
Even under the elements of the stalking statute, the orders (and their affirmance) were against the manifest weight of the evidence, particularly if the lower courts had properly considered whether the supposedly "threatening" conduct (attending public hearings of a legislative body with other citizens), speech (about a legislator, at a public hearing of his legislative body) or gestures (pointing out or at that same legislator) were fully protected by the First Amendment. But the Court of Appeals decision creates independent constitutional questions as well, for the unprecedented factual circumstances of this case involve a public official and public meetings, and its affirmance violates well-settled First Amendment prohibitions against prior restraints and speaker-based restrictions on access to public fora.
This Court has jurisdiction to hear matters where there remains a "debatable constitutional question to resolve," even if otherwise moot. [The injunction expired in June, after the Court of Appeals decision but before the Ohio Supreme Court will have a chance to consider the case.] Constitutional questions unresolved by this Court also preclude mootness. This appeal raises substantial and unsettled constitutional questions that were exacerbated but ignored by the decision below. This Court should hear them.
[II.] This case is of public and great general interest.
The decision below stands for a simple, stark proposition that affects every citizen considering raising public concerns at public meetings. Now, any politician in the Eighth District can obtain an ex parte court order that forbids a critical constituent from attending his official public hearings, and extend it for at least a year, simply by averring that the citizen's constitutionally protected speech shows that his critic dislikes him.
[III.] The decision below affirms an unlawful prior restraint.
Judicial orders "that operate to forbid expression before it takes place" are prior restraints. Even temporary restraining orders "i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Prior restraints are the most serious and the least tolerable infringement on First Amendment rights, and face a nearly insuperable presumption against constitutional validity. "Prior restraints are simply repugnant to the basic values of an open society" because they sanction "indiscriminate censorship in a way that subsequent punishments do not.'" Only extraordinarily powerful governmental interests can justify affirming one.
None were shown here, and the Court of Appeals affirmed unlawful prior restraints without applying controlling standards, or tailoring them to avoid constitutional infirmity. Moreover, by ignoring the First Amendment standards implicated by this unusual factual context, the decision below creates a split within the appellate districts on how no-contact, domestic-violence, and other restraining orders are reviewed on appeal….
In affirming the Temporary and Final Injunctions, the Court of Appeals improperly considered protected speech to be sufficient evidence of unlawful conduct, and affirmed a predicate finding of menacing by stalking. But as the United States Supreme Court declared in Watts, even speech that specifically alludes to violence is protected speech if its context shows it to be political hyperbole, and it is clear that the identifying or emphatic gestures, as well as the vigorous speech—even believing Dow's testimony—that makes up the entirety of the evidentiary record is all fully protected. Yet the Court of Appeals did not at all consider whether the Nelsons' past speech to Dow was constitutionally protected, creating another appellate fracture with Districts that do consider whether the underlying speech is protected, and violating its duty to independently review the record for constitutional violations.
The Court of Appeals also accepted that pure speech can be subject to criminal penalties for causing subjective mental distress, ignoring First Amendment principles to which this Court has correctly adhered. The Court of Appeals also accepted evidence about the Nelsons' protected speech in satisfaction of Dow's burden to show repeated conduct known by the Nelsons to cause him mental distress, despite the law's presumption that when a candidate enters politics, he "must expect that the debate will sometimes be rough and personal," and cannot "cry Foul!" when confronted by opponents. And its holding that pure speech can be enjoined for causing emotional distress flatly contradicts First Amendment holdings from the United States Supreme Court and this Court, which recognize that, however free the states are to regulate conduct that causes emotional distress, speech on matters of public concern that does so cannot be punished unless it fits into one of the narrow First Amendment exceptions (such as for "true threats")….
[IV.] The restraining order has expired but this appeal is not moot.
Even if the CSPO's expiration created a mootness question, this Court's jurisdiction remains undisturbed because this case involves a matter of great public interest, and raises substantial constitutional questions. This Court's jurisdiction is also and independently preserved by two important exceptions to the mootness doctrine. [Details omitted. -EV] …
 Kreuzer v. Kreuzer, 2001-Ohio-1542 (2d Dist.) (activities "might qualify as protected speech in another place at another time" but did not "qualify as protected speech on the facts of this case."); State v. Bilder, 99 Ohio App. 3d 653, 664 (9th Dist. 1994) ("Defendant's conduct exceeded mere speech "in its purest form."); Dayton v. Smith, 68 Ohio Misc. 2d 20, 24 (Mun. Ct. 1994) (A person practicing any of the above [First Amendment] rights could not be found guilty of violating R.C. 2903.211 without proof he intended to cause another person harm.").
 Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) ("emphasiz[ing] the need for an appellate court to make an independent examination of the entire record.").
 Snyder v. Phelps, 562 U.S. 443, 458 (2011) (speech "at a public place on a matter of public concern" is "entitled to 'special protection' under the First Amendment" and "cannot be restricted simply because it is upsetting"); Seven Hills, 1996-Ohio-394 ("Speech may 'best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.").
 Franchise Developers, 30 Ohio St. 3d 28, 31, 505 N.E.2d 966, 969 (1987).
Dow has apparently chosen not to file a response, or else I would have posted it as well. (Note, by the way, that, though the opinion below uses the parties' initials, the case is not sealed, and the parties' names are not confidential. The initials seem to be used because a federal statute provides that "[a] State … shall not make available publicly on the Internet any information regarding … a protection order …, if such publication would be likely to publicly reveal the identity or location of the party protected under such order"—but that just constrains what the state government can put online, not what third parties can write about; though I work at a state university, I am not acting as a state actor in writing this post.)