Free Speech

Filing Motion to Unseal in Cincinnati Police Officer's Libel Case

|The Volokh Conspiracy |

WKRC in Cincinnati (James Pilcher) reported several days ago:

A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.

Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the "ok" sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement….

The officer's lawyers were able to get the records sealed and the officer's name replaced by a pseudonym (the court hearings are still open to the public).

They took that step after arguing that some online wrote they knew where the officer lived – information gained from public sources such as the county auditor's website.

The online posters never published that information, but the lawyers argued it could lead to "doxing" – or releasing personal information that could lead to harassment at the officer's home….

The story includes a video that links to what appears to be the Facebook page, and notes that the judge declined to order the page removed. (Ohio law does authorize anti-libel injunctions after a finding on the merits that certain statements are false, but of course there has been no such finding yet.)

I'm quite skeptical about claims that using "ok" signs is a sign of racism; but however the libel lawsuit is resolved, it can't be resolved under seal. Both Ohio law and the First Amendment provide a public right of access to court files, and while that right can be limited in some situations, I doubt that it can be here (though it's hard to tell for sure, given that the entire file now seems to be unavailable, and I can't read any motion to seal or any order granting that motion).

Because of this, I asked Jeffrey M. Nye (Stagnaro, Saba & Patterson) to file a motion to unseal on my behalf, and he graciously agreed to do so (pro bono). Fortunately, after we agreed on this plan, we learned that the Cincinnati Enquirer had filed its own motion, which we could free ride on; here is what we plan on filing tomorrow:

Eugene Volokh moves under Superintendence Rule 45(F) to unseal all case documents and restore public access to the case file, and joins in the motion filed July 27, 2020 by the Cincinnati Enquirer.

Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law, where he specializes in First Amendment law. He has written extensively on First Amendment law, on libel law, on speech-restrictive injunctions, and on sealing, both in his scholarship (including Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73 (2019)) and on his blog, The Volokh Conspiracy, now hosted at Reason Magazine (https://reason.com/volokh) and hosted from 2014 to 2017 at the Washington Post.

Professor Volokh is interested in this case because he is currently writing a follow-up law review article on anti-libel injunctions as well as an article that discusses attempts to maintain information confidential in filed cases; because he wants to write about the libel, injunction, and sealing dimensions of the case on his blog; and because he is one of the Advisers to the American Law Institute's Restatement of the Law (Third) of Torts: Defamation & Privacy project. He would like to be able to read and quote the entire case file, both the already filed documents and future filings, so that he can write about the matter in more informed ways. For the reasons given in the Enquirer's motion, he believes that this case should be unsealed.

Professor Volokh adds that while the Enquirer's motion makes no reference to the substance of the case, media reports about a sealed case in this Court indicate that the plaintiff is a police officer and that the substance of the case relates to his conduct on duty and in his official capacity. This provides further support for unsealing the entire record.

"The United States Supreme Court has repeatedly recognized that police officers are public officials." Soke v. The Plain Dealer (1994), 69 Ohio St.3d 395, 397. The public has an interest in, and the First Amendment protects both discourse on and access to court records regarding, "anything which might touch on a[ public] official's fitness for office." Id., quoting Garrison v. Louisiana, 379 U.S. 64, 77 (1964). This includes a police officer's conduct in court proceedings. Id. at 398 (such conduct "is relevant to the officer's fitness to hold his job"). The particular facts of this case therefore weigh in favor of unsealing, above and beyond the general principles favoring public access to court records described in the Enquirer's motion. See also, e.g., Sup.R. 45(A) ("Court records are presumed open to public access."); State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, at ¶15-16 (discussing historical roots and significance of "the right of public access . . . in the administration of justice"); In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (observing that "adult civil actions, are presumptively open to the public.").

"The open courtroom is a bedrock principle of the American judicial system," and the Ohio Bill of Rights includes "a constitutional requirement that 'all courts shall be open …." Woyt v. Woyt, 8th Dist. Cuyahoga no. 107312, 2019-Ohio-3758, ¶59, quoting Sec. 16, Art. I, Ohio Constitution. It is constitutionally impermissible and reversible error to "fail[] to identify any specific case document or part thereof [to be sealed] and conduct a meaningful analysis as required by Sup.R. 45(E)(2)," Woyt at ¶66. And even if specific case documents or parts thereof are identified and a meaningful Rule 45(E)(2) analysis is conducted, it is constitutionally impermissible and reversible error to "fail[] to use the least restrictive means available [to restrict public access] as required by Sup.R. 45(E)(3)." Id.

"It should only be in the rarest of circumstances that a court seals a case from public scrutiny. When a litigant brings his or her grievance before a court, that person must recognize that our system generally demands the record of its resolution be available for review." Id. at ¶67.

Professor Volokh respectfully requests that the Court unseal the record and restore public access to all case documents.

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  1. The other side of this is that cops often have small children.

    I come out of K-12 where you have to protect small children. It’s often a tough call, but do you want some 6-year-old getting killed because his/her/its dad is a cop?

    1. No — I don’t want 6-year-olds getting killed. And indeed there is a chance (thankfully, a very small chance) that when anyone is sufficiently disliked, someone will either attack their children, or the child will get caught in the cross-fire.

      That disliked person could be a police officer, or an abortion provider, or an accused child molester, or a gang member, or one of a wide range of other people. But that can’t justify sealing all cases involving someone whom people may dislike.

      1. Probably a good thing cops can carry without a license in just about every jurisdiction. Too bad everyone else can’t have such a right.

      2. Prof Volockh — it’s not “crossfire” as much as exploiting soft targets, going to the school or following a school bus.

        Or something like this, from the movie “Kindergarten Cop”
        https://www.youtube.com/watch?v=EVgiMfDJQsg

        I don’t claim to have answers, I just know we worry about it.

        1. As an aside, it’s a good idea to tell your children a “special word” that anyone claiming to have been sent by you to pick up the child will know — and anyone else you didn’t send….

          1. As an aside, it’s a good idea to tell your children a “special word” that anyone claiming to have been sent by you to pick up the child will know — and anyone else you didn’t send…

            If you are a billionaire, a U.S. senator, or an A-list movie star, sure. Otherwise, there’s as much need for this as there is for buying an APC to drive them around in to keep them safe.

          2. So your theory is that enough parents send complete strangers (to the kid) to pick up their kids that the kids are in the habit of getting in cars with people they don’t know. And that teachers let them. Outside of hollywood, that happens basically never.

            The only alternative interpretation of your “special word” protocol is that it’s a code for the teacher, not the kid. It that’s your theory, a) that’s not how schools (or scouts, sports or any other club) works. They all maintain lists of approved adults for each child. And b) even if you tried to implement a codeword instead of a defined user list, it would rapidly become a secret so widely shared that you can no longer trust it as a secret.

            Unless, as David N points out, there is an extreme economic incentive, abduction by strangers is a fantasy. It’s more rare than voter fraud. The majority of abductions are by family members. The remainder are by people the child already knows, usually well.

            1. To be clear, there’s nothing wrong with having a passcode. It doesn’t cost anything, other than perhaps making one’s children a bit more paranoid. It’s just totally unnecessary.

              I remember one time I was supposed to pick up my daughter from soccer practice after work but I was stuck on the train on the way home. So I contacted one of the other parents and asked her to bring my kid home. The mom said, “Will she know to come with me?” So I told her to just offer my daughter some candy and she’d get in the car.

        2. Dr. Ed: How many police officers’ children are killed each year because of what their parents do? I’m not saying it has never happened — but since you brought it up, and thought it was a significant enough concern to possibly justify sealing, I’m curious what data you have on it.

          1. Who do you think you are, Jonathon Swan?

            1. I assume that Ed read about it in the book or manual that does not exist. (Hat-tip: President Trump)

              1. “I assume that Ed read about it in the book or manual that does not exist.”

                Oh, the policies exist — it’s more that no one asks the question Prof. Volokh did of likelihood and risk assessment. It’s like thunderstorms — I’m not building a Faraday Cage in my backyard, but I’m not standing under a tall tree, either.

                This all started in the ’80s with the pictures on the milk cartons…

          2. Good point — it probably is like school shootings, which are *very* rare although you wouldn’t think so. Both of the situations I was incidentally involved in involved family members — one involved a father attempting to kidnap his son (that would up with an arrest) and another involved a girl hiding from her family because of something involving sexual abuse. Didn’t know (or want to know) the details on the latter beyond that we weren’t supposed to tell anyone where she was living.

            I do know that Massachusetts sealed the home addresses of all police officers about 15 years ago now, allegedly for this reason, but who knows.

        3. Have you actually watched that movie, Dr Ed? The kid being attacked in that scene is not the cop’s kid, it’s the attacker’s kid. That clip has precisely zero relevance to your claimed worry about police anonymity.

          (For those not familiar with it, the movie is a ham-handed hollywood interpretation of a custody dispute where one of the parents is a mobster.)

    2. Is there any reason that anyone (including children) is are risk?

      Please provide any information you may have to the local authorities.

      Unfortunately is has been all to common for people to claim they have received “death threats” which unfortunately may be true but but luckily are seldom carried out.

      1. ,Unfortunately is has been all to common for people to claim they have received “death threats” which unfortunately may be true but but luckily are seldom carried out.

        20 years ago, Ollie North was the only conservative speaker who had a security detail. Now I think that all of them do. I know they get threats, some of which are considered credible, and that it sometimes leads to scheduling problems, but beyond that, I didn’t really want to know.

        1. Ed, it’s not just conservatives. Or even just politicians.

          This is driven by something other than partisan politics.

          1. I wasn’t involved in booking leftist speakers and hence I can’t speak to that.

    3. Burglars, drug dealers, and a whole lot of other criminals also have families. Do they get to hide behind sealed cases?

      Cry me a river. Odds are this cop is no saint, and I’d say trying to hide behind a sealed case just increased the odds.

  2. In other News, Mark Levine just cited the article on CJ Roberts.

    1. For a Conspirator, that’s almost as sweet as being cited approvingly in one of Justice Thomas’ lone justice dissents.

  3. I wonder professor, what sorts of situations, in your opinion, would it be reasonable for the person filing suit in a libel case to be able to win a motion to seal?

    In this case, well, the accusations were public information anyhow, and I doubt access to the case itself would do any harm to the officers reputation (imo it would improve it, as it would give context to the racism accusations that were were baseless and stupid). But are their cases in your opinion where it is a reasonable thing to do?

    1. We have open courts in the country so that the public can effectively monitor what the courts are doing. That’s especially important when the courts are being asked to restrict speech, whether by imposing damages for the speech, or especially by issuing injunctions against speech.

      It’s impossible for the public to do this when the case is entirely sealed, or when the allegations at the heart of the lawsuit are sealed (see, e.g., Parson v. Farley). So I don’t think such sealing would ever be justified. On the other hand, if there are some tangential matters that the plaintiffs seek to seal (e.g., the names of their children, their addresses, their bank account numbers, etc.), when those matters don’t need to be seen to evaluate the court’s actions, then modest redactions of such information may be justifiable.

  4. The article seems to suggest that a cop suing for libel/slander is somehow not a legitimate legal tactic when their name is besmirched with false accusations. Especially assuming that a police officer is probably going to be a limited public figure for First Amendment purposes, I don’t see a problem with them using the civil courts to keep their name clear. It isn’t like the media is going to do the job of honest reporting…

    1. I’m not sure how it seems to suggest this — perhaps the lawsuit has merit. But it’s hard to tell when it’s all sealed, no?

    2. Considering the kinds of scandals it takes for investigations to actually get past the police unions, and the tremendous dirt uncovered once that happens (see Houston for an example), I’d say cops aren’t doing a very honest job either. I bet if the public knew the truth, they’d rank right down there with the media and politicians.

      1. I don’t think most cops are “good” in the sense the public would regard that status. Most are probably “OK” meaning that they won’t actively set someone up, outright lie, plant evidence, etc. But probably a decent amount, especially in cities, are “bad” and do things like that on a regular basis.

        Their job is necessary though and to some extent I think the public is happy “not knowing how the sausage is made.” Give them a safe community and they couldn’t care less absent something blatant. Cops know this is the objective and if that means playing fast and loose on occasion that is just part of the game of law enforcement.

        Now I do not condone this at all, but I do recognize that it is part of the system and has been at least since police were professionalized in the early part of the 20th Century. Maybe it is a laudable goal to finally get this out of the system, but since it is so interwoven into it I don’t know how you really accomplish that. (Perhaps the answer is actually just deconstruct professional policing…?)

        I don’t think most people will like reality without professional policing though. Many will be more than happy to go back to the days where the police stood on the wall and no one asked them about the details on how they kept order (a la A Few Good Men.)

  5. “Ok sign”

    You know, between this and Betsy Ross flag, I start to wonder if this isn’t driven by foreign government trolls trying to stir up dissent in the US by picking out innocuous symbols, portraying them with new, racist meanings-as-used by some asses, possibly by trolling same to get it started, then getting the other side to start cancellation on the symbol, deliberately, to start outraging the masses who start wtffing about all this. Then in turn it turns into a big stink.

    Mission accomplished.

    We’ll probably never know.

    1. Who says “foreign” — we have enough domestic subversives.

    2. Turning the OK sign into a ‘white power’ symbol? It was definitely trolls, but I’m pretty sure they were (at least mostly) domestic. The responsible party is 4chan.

      That said, it wasn’t specifically trying to flame dissent. Pretty sure they did it for the lulz.

    3. I have sometimes wondered that myself.

  6. Baby, if you ever wondered
    Wondered, whatever became of me
    I’m suing as a Doe in Cincinnati
    Cincinnati, WKRC

  7. I have to say, simply deciding that certain words and signs done by a white person are racist and an indicator the person using them is evil, is a bit like deciding that certain words and gestures are evidence a black person is evil.

    Emmit Till, like so many others, was lynched for speaking “disrespectfully” to a white woman. It is a sign of power to be able to determine on ones own say-so what constitutes disrespect and to demand that others conform or else.

    I recognize that there is a huge difference between a facebook post and an actual lynching.

    Nontheless, “OK” has been standard slang usage in the US for a long time with no racist connotations. To simply decide on ones own that it is evil and to attempt to destroy the reputations of those who use it simply as an exercise in power deserves the sanctions of libel law.

    Martin Luther King intended to change the way things were done. The idea wasn’t just to change who gets to be boss but otherwise keep things going exactly the way they were before.

    The idea wasn’t to make accusations of racism work just like accusations of communism under MaCCarthy, or being a reactionary under Stalin, with powerful and paranoid operatives trigger-happy for closeted subversives and eager strike at whoever comes into their gun sights.

  8. ????, well ok then.

  9. Since one of the absolute defenses against libel charges is speaking the truth, I imagine discovery is going to be real fun in this one.

  10. Prof. Volokh, your argument seems good but I think you deny the officer the only defense available when even more defense is needed. The accusation is a sort of cultural judo. The officers reputation is a key that unlocks his ability to be a cop. Thus, to earn a living, own a home, have a family and enjoy these benefits in American culture. The accuser takes away the officers key but with benefit, and no cost, to the accuser plus the accuser can enlist others to increase the officer’s cost – instead of merely invalidating his years of training and experience and making him unemployable, they threaten his home with arson and his family with violence. In these days of Antifa and BLM, the accuser will be viewed as a hero. Even if he loses the suit, he loses nothing else.
    One simple, free, accusation swings a huge amount of cost in the accused person’s culture with essentially no risk to the accuser. Where is the equity in that? You have freed the oppressed mouse while ignoring the 500-pound gorilla. Free speech isn’t going to put food on the officers table or deprive the accuser of anything. I don’t know the solution … you’re the professor “Primum non nocere“?.

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