The Volokh Conspiracy
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I blogged last week about a motion to unseal filed on my behalf (by Jeffrey M. Nye [Stagnaro, Saba & Patterson]) in this case. Since then, I've found out more about it—and in some ways, it's even more troubling than before.
[1.] The backstory: WKRC (James Pilcher) reported:
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….
[2.] Since then I've learned that the case file was never formally sealed; the Clerk's Office just erroneously treated it as sealed. That's been cleared up, and it's now clear that only two things have been sealed: (a) the name of the officer, instead of which a pseudonym is being used, and (b) the officer's affidavit. My motion to unseal remains pending, but it's scheduled to be heard Sept. 1.
[3.] But I've also learned that the judge has issued a preliminary injunction—without full briefing—ordering the defendants not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information." The order doesn't define "personal identifying information," but the only Ohio statute that does define term (the identity fraud statute) defines it to include a person's "name."
Thus, the bloggers are banned from mentioning the police officer at all. They aren't just banned from libeling him; even a post conveying accurate information, or expressing an opinion, about the police officer is forbidden, if it mentions the officer's name.
Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper. The judicial determination that specific speech is defamatory must be made prior to any restraint.
The court relied on a U.S. Supreme Court case that allowed injunctions restricting further distribution of material "found after due trial to be obscene." But here, the speech naming the plaintiff is restricted, period, without any limitation to speech that has been found defamatory.
[4.] The plaintiff has also sought a preliminary injunction ordering defendants to "remove all postings on social media that falsely portrayed Plaintiff as a 'white supremacist' and refrain from making similar posts in the future"; the hearing on that is also apparently scheduled for Sept. 1. But that request is also inconsistent with Ohio law, because it seeks an injunction before any due trial on whether the accusations against the plaintiff were libelous, rather than after.
What's more, the Ohio Constitution provides,
Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.
Yet the preliminary injunction, if it were issued, would essentially criminalize libels (by making repetition of the alleged libel into contempt of court) without any jury finding as to whether the statement is true and well-motivated.
In any event, all this strikes me as quite improper: the sealing (even in the more limited form than first appeared), the restraining order, and the proposed injunction. But at this point, the restraining order appears to be the most troubling: It bars critics of the government from mentioning the name of a public official (Ohio law treats police officers as public officials for libel law purposes and for other purposes), based on a quick decision by one judge without an adversary hearing. A pretty clear First Amendment violation, it seems to me.