Immediate Appellate Review of Prior Restraint in Cincinnati Policeman Libel Suit?

Here's an amicus brief we just filed. It's just like with the Nazis!

|The Volokh Conspiracy |

As you may recall from an earlier post, a Cincinnati policeman is suing for libel over a post that accused him "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." And the judge responded by issuing a preliminary injunction 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. The defendants have appealed the order, and right now the question before the Ohio Court of Appeals is whether this order should indeed be immediately appealable. (You can read the officer's motion to dismiss the appeal, and the defendants' response.)

My invaluable pro bono local counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) has just filed an amicus brief urging immediate review, on behalf of several current and former Ohio First Amendment professors—Jonathan L. Entin, Andrew Geronimo & Raymond Ku (Case Western), David Forte, Stephen Lazarus & Kevin O'Neill (Cleveland-Marshall), and Margaret Tarkington (currently Indiana, but formerly Cincinnati)—as well as Aaron Caplan (Loyola) and me, as well as the National Writers Union, the Writers Guild of America (East), and the Society of Professional Journalists. Here's the substance of our argument:

Introduction

The court below forbade Ms. Niesen and Ms. White from mentioning the name of a public official (police officer "M.R.") in any forum or medium. This was a decision made by one judge, without the opportunity for a full trial or even comprehensive briefing, less than 48 hours after the complaint was filed. The order is not limited to forbidding libelous speech, speech that constitutes true threats, or speech that falls into any other First Amendment exception.

It prohibits speech that is fully protected by the First Amendment and by Art. I, § 11 of the Ohio Constitution. It has no expiration date. The order is a prior restraint of the appellants' speech.

It is conceivable, of course, that extraordinary circumstances can justify even such a prior restraint. (Amici doubt this is so in this case, but that is a matter to be dealt with in the merits briefing.) Yet if the prior restraint ultimately can stand, it cannot do so based on the hurried decision of one trial court judge. Rather, "a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review." Puruczky v. Corsi, 2018-Ohio-1335, 110 N.E.3d 73, ¶15 (internal quotation marks omitted). That principle fully applies here.

This is not just a matter of good policy—it is a constitutional requirement. "A prior restraint … has an immediate and irreversible sanction" that is unlike any other remedy a court may impose, including "a judgment in a defamation case" or even "[a] criminal penalty," because all other sanctions are "subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative" for other remedies. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

That "panoply of protections" does not exist for a prior restraint, which is why "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Id.Prior restraints "fall on speech with a brutality and finality all their own." Id. at 609 (Brennan, J., concurring in reversal of prior restraint).

More broadly, every day that a prior restraint remains in place is a First Amendment violation, and "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). And it is not an injury merely to the enjoined parties: "Indeed, it is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech." Nebraska Press Ass'n, 427 U.S. at 609 (Brennan, J., concurring) (emphasis added). An overbroad anti-libel injunction has "the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers." McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015).

This injury to society and the parties is not remediable by vacatur or reversal of a prior restraint at a distant future date after final judgment, especially where (as here) the prior restraint relates to a public official and his conduct in official and court proceedings. The parties and the public have a right to speak contemporaneously, not merely retrospectively, about both public officials and court proceedings. See Bridges v. California, 314 U.S. 252, 268 (1941) ("[P]ublic interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist."); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014) (acknowledging the harms of "delayed disclosure" with respect to court proceedings).

Immediate appellate review is necessary to make sure that the injunction does not cause such a loss of First Amendment freedoms. And if Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to such immediate appellate review of an injunction against their speech, see Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43–44 (1977); see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), then citizens criticizing a police officer must be entitled to the same.

Argument

[I.] Prior restraints are immediately appealable.

"If a State seeks to impose a restraint" by way of an injunction against speech, "it must provide strict procedural safeguards, including immediate appellate review." Nat'l Socialist Party, 432 U.S. at 44 (citing Nebraska Press Ass'n v. Stuart, 423 U.S. 1319, 1327 (1975) (Blackmun, J., in chambers)). This principle has been followed in Ohio by Puruczky, supra, as well as Int'l Diamond Exch. Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 671, 591 N.E.2d 881, 884 (2d Dist. 1991), and Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, 2016 WL 2841190, ¶1. Indeed, Puruczky and Connor Group involved injunctions entered in response to libel lawsuits.

And this requirement of immediate appellate review makes sense, because "'[w]here …  a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citation omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (endorsing this principle as requiring "expeditious[]" decisionmaking as to restraints on First Amendment rights, there the right of access to court records); Doe v. Pub. Citizen, 749 F.3d 246, 272–73 (4th Cir. 2014) (same); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (same), superseded on other grounds, as stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009).

And of course this principle applies beyond the mainstream media, and covers social media users as well. Art. I, § 11 of the Ohio Constitution "guarantees to '[e]very citizen' the right to publish freely his or her sentiments on all subjects, regardless of that citizen's association or nonassociation with the press." Wampler v. Higgins, 93 Ohio St. 3d 111, 121 (2001). "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. United States, 558 U.S. 310, 352 (2010) (internal quotation marks omitted). "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets… . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. Dist. Ct. App. 2014) ("Angry social media postings are now common… . But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk," and are just as fully protected by the First Amendment).

[II.] The order in this case is a prior restraint.

"The term 'prior restraint' is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25 (some quotation marks omitted). "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Id. (quotation marks omitted).

The order in this case does indeed forbid certain future "speech activities": all posts "publicizing" "Plaintiff's personal identifying information," Order at 1, which presumably includes plaintiff's name. (The only Ohio statute that defines the term "personal identifying information," Ohio Rev. Code § 2913.49(A), defines it to include a person's "name.")

And the order restrains speech in a content-based way. "It is inescapable that a regulation of speech 'about' a specific person … is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation." Bey, supra, 2020-Ohio-3301, ¶33.

The prior restraint here is by no means limited to libelous speech, since it bars all mentions of plaintiff's name, libelous or not. Nor is it limited to true threats of harm, or to speech that falls within the narrow exception for intentional incitement of imminent and likely criminal conduct, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

Moreover, the restraint was issued before any determination that the speech fits within a First Amendment exception. Yet "before a court may enjoin the future publication of allegedly defamatory statements based on their content, there must first be a judicial determination that the subject statements were in fact defamatory." Bey, supra, 2020-Ohio-3301, at ¶44 (citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 246, 327 N.E.2d 753 (1975)). Likewise, a court may enjoin speech that falls within some other exception only after "there has been" a "judicial determination that future postings" by the plaintiffs will fit within that exception (in Bey, this was the "integral means to criminal conduct" exception). Id. at ¶¶45, 47.

M.R. thus errs in arguing that "[t]his case is nothing like National Social[ist] Party of Am. v. Village of Skokie, 432 U.S. 43 (1977) because false light and defamatory statements are not entitled to protection under the First Amendment," Mot. to Dismiss Appeal 4-5. The order here is not limited to banning "false light and defamatory statements." The order is not founded on "a judicial determination that the subject statements were in fact defamatory," Bey, supra, 2020-Ohio-3301, at ¶44. And the whole point of prompt appellate review in such cases is precisely to determine whether the speech is indeed constitutionally restrainable (for instance, on the theory that it is defamatory); indeed, Puruczky,  supra, 2018-Ohio-1335, and Connor Group, supra, 2016-Ohio-2959—which found a right to prompt appellate review of preliminary injunctions (based on Nat'l Socialist Party)—were themselves libel cases.

Conclusion

Prior restraints on speech are rarely constitutional; and to make sure that unconstitutional prior restraints suppress speech for as short a time as possible, both the U.S. Supreme Court and Ohio courts have required that such restraints be subject to immediate appellate review. The injunction in this case is a prior restraint, and thus subject to immediate appellate review; indeed, it is a content-based prior restraint, and one that is not limited to libelous speech or to speech that falls within a First Amendment exception. This appeal should therefore not be dismissed.

NEXT: Today in Supreme Court History: August 24, 1946

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  1. It will be interesting to observe how the relevant officer’s reported social media statements — which are reported to be those of a strident bigot who tries to scrub the record when he no longer believes he is in a safe space — will influence the dispute as it develops.

    Also interesting will be the role of his reported employment record with respect to on-duty involvement in violence involving the black citizenry, including use-of-force complaints.

    The once-proud racist seems to have taken the coward’s course and attempted to remove his bigoted expressions from public view, but it appears some civic-minded citizens preserved the record before the suddenly shy racist could try to cover his tracks.

    Prof. Volokh seems disinclined to use the officer’s name, which seems curious in light of his insistence on robust, unblinking disclosure in other contexts.

    1. Since you show disdain for such ‘cowards’ who won’t reveal their beliefs in hostile situations will you proudly announce yourself as an open apostate in a conservative Muslim Country and make sure you remain long enough for the residents to give you their feedback?

      1. “Hostile situations?”

        Do you believe a guy who publishes racist, misogynistic content should be issued a badge and gun and placed in a situation in which he has discretionary authority over American citizens? The “hostile situation” in this context seems to involve the citizens who encountered this officer in uniform.

        I am still trying to figure why Prof. Volokh — who repeatedly uses the most vile racial slur to ‘prove a point’ about disclosure and accuracy — won’t publish this officer’s name. Do you believe he is attempting to protect the officer, Dr. Ed?

        1. “Do you believe a guy who publishes racist, misogynistic content should be issued a badge and gun and placed in a situation in which he has discretionary authority over American citizens?”

          Do you thing that a homosexual should be permitted to teach our children?

          And what’s the difference between the two questions?

          And a lot of Black officers who listen to (and sometimes perform) Rap Music would run afoul of your racist & misogynistic criteria.

          Kirkland, it should be Job Performance and nothing else. Not whom he sleeps with, not what he writes, nor anything else. I don’t care if he runs through the woods in his underwear and howls at the moon, this is a free country.

          1. “Do you thing that a homosexual should be permitted to teach our children?”

            Yes. Why do you ask?

        2. “Do you believe a guy who publishes racist, misogynistic content should be issued a badge and gun…”

          According to your side, all white people are racist, and all men are misogynistic. So unless you want to prevent white men from being cops, what options are there?

          1. Not all white people are racist, nor are all men misogynistic. Not nearly. How do you think the racists and misogynists are being relegated to the fringe of American society?

          2. “According to your side, all white people are racist, and all men are misogynistic.”

            Meanwhile, according to MY side, all racists are racist, and all misogynists are misogynist, and neither category is well-suited to law-enforcement work.

    2. Kirkland has just shown why such a restrictive and otherwise repugnant order is not only legitimate but necessary.

      The problem is that the Constitution never anticipated that bullies like Kirkland would have the power to DESTROY lives with a few nonchalantly written paragraphs like this.

      It’s a very real harm that a civilized society needs to somehow abate — and if not by this means, then what means?

      1. The problem with your argument is that bullies like Kirkland do not have the power to destroy lives. Like him, they are quickly recognized as trolls whose opinions are ignored.

        The second problem is that the Constitution does anticipate that bad people will do bad things. That’s why we have a criminal justice system (and a civil justice system to compliment) – to punish the bad people after they have actually been found guilty. And that’s the right remedy here, too. If Niesen and White said something libelous, prove it in court and punish them for it. Restricting them from committing further crimes while you’re waiting for the trial might be allowed. But restricting even true and non-libelous speech before the trial is not allowed.

        1. ” Restricting them from committing further crimes while you’re waiting for the trial might be allowed.”

          It absolutely is. Being charged with a crime isn’t a license to commit other crimes. Hell, everybody involved in the trial is restricted from committing crimes, not just the defendant.

          1. Apologies – my wording was unclear. You’re not allowed to commit libel. That’s already true for all of us. While you are awaiting trial on a libel charge, a judge can specifically restrain you from saying the more things that are libelous. The judge is not, however, supposed to be able to restrain you from saying non-libelous things.

            Note that the judge’s authority to restrict your speech after the trial is substantially greater than before the trial. The judge could legitimately find that what A said about B was so bad and that A is so likely to repeat the behavior that A can no longer talk about B. But that requires factual determinations that get made during the trial. There’s no sufficient basis to make those determinations before the trial.

      2. The problem is that the Constitution never anticipated that bullies like Kirkland would have the power to DESTROY lives with a few nonchalantly written paragraphs like this.”

        If your life can be DESTROYED by having someone accurately point out “Hey, that’s Ed in this picture, here” then you’ve made some mistakes. If the problem is that you resemble someone who is photographed doing unpopular things, your complaint is with God, and you should take your complaint directly to Him.

        1. I hope you’re OK with Joe Biden being accused of molesting every little girl photographed with him….

          1. Joe Biden has exactly the same entitlement to prior restraint of defamatory speech as the officer plaintiff here, i.e. none.

          2. I hope you’re OK with Joe Biden being accused of molesting every little girl photographed with him….”

            Why would I not be, other than my general objection to stupidity?

      3. I’m confused.

        How would the original accusations of racism (which, I will concede, do not appear to be especially compelling) have “DESTROY[ed]” the officer’s life? Indeed, even though the filing of this lawsuit reflects quite poorly on the officer’s judgment, temperament, and respect for the basic rights of others, I see little prospect that the publicity surrounding it is going to “DESTROY” anything.

    3. Do you even read the posts? The whole point of EV’s amicus brief is to challenge the prohibition on disclosing the officer’s name.

      Does it occur to you that maybe the reason EV has not unilaterally disclosed the name is that he doesn’t know it?

      1. The name has been published repeatedly. Once, at least, in the comments to this blog. What is the chance Prof. Volokh doesn’t know the name — or couldn’t find it in 30 seconds?

        Something distinguishes this officer’s name from the vile racial slur that is repeatedly published at this site. It might be worthwhile to understand the distinction.

  2. How does likelihood of success on the merits affect the analysis? Seems like the defense is in a very strong position… to win, they just have to prove that it is plaintiff if the video and photos, as defendant claimed.

  3. “It’s just like with the Nazis!”

    Yeah. . . you might want to read a history book or maybe do a quick Google search.

    1. apedad: It’s a little joke — the main precedent here is National Socialist Party v. Skokie, where the Court held that the Nazis were entitled to immediate appellate review of a restriction on their speech; just like with the Nazis, the defendants here (and all other speakers as well) are also entitled to immediate appellate review of such restrictions. As the brief argues,

      And if Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to such immediate appellate review of an injunction against their speech, see Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43, 43–44 (1977); see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), then citizens criticizing a police officer must be entitled to the same.

      1. “…apedad: It’s a little joke…”

        As is apparent from some of his posts, apedad is a feminist.

    2. “It’s just like with the Nazis!”

      Funny story, the Portland Police Bureau had a command-level officer who liked to go out in the woods and dress up in a Nazi military uniform. He got outed in the liberal press and relieved of command, but later on an arbitrator found that this action was wrongful.

      https://www.wweek.com/portland/article-2933-the-cop-who-liked-nazis.html

      1. The article alleges inappropriate use of force as an officer, which is a little bit different.

        1. It also points out that the guy admitted to dressing up in his costume and driving around. which is a little bit different from the summary I offer, but only a little bit different. The exact details require understanding what “Rocky Butte” is, and why anyone in Portland would care.

  4. Total crock of sh*te.

    The defendant’s should just violate the injunction in defense of the Constitution….like civil disobedience to an unjust decree. Flip the bird to the idiot Judge Megan ‘slept through law school’ Shanan.

    Time to give these bastards a taste of their own shi*te!!!

    What is the real name of the public official who is suing these citizens? Please post!!!

    1. The officer’s name has been published widely . . . including by USA Today.

      That the judge is a Republican and former prosecutor with a demonstrated taste for secrecy seems more relevant than the degree to which she was awake during law school.

      1. Perhaps the Judge is an intelligent & observant woman who’s seen the lives of other Republicans maliciously destroyed with spurious allegations of racism.

        In his 1925 book Mein Kampf, Adolf Hitler developed the concept of the “big lie” — one so “colossal” that no one would believe that it could be false. Respectfully, Prof. Volokh, it is the defendants who are the Nazis here. And if this crude solution isn’t the one you prefer, what would you suggest?

        Hitler wrote “It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying.”

        Even if the lie is shown to be a lie, people will still believe that there was truth behind it.

        1. And as an aside, this was how Hitler got a civilized and basically decent people to murder some six million of their friends & neighbors, merely because they were Jewish.

          While German antisemitism dated back to Martin Luther, if not earlier, Hitler blamed “the Jews” for both Germany’s defeat in WW-I and the draconian peace settlement that followed.

          1. With regard to Hitler being upset at the outcome of WW1, it was the American Jew who brought USA to the War. The British Jew was promised a homeland in return. Jews have been kicked out of 109 countries for the simple fault of being jewish, which the host societies found unpalatable. Just life.

            1. Winston Churchill was Jewish?
              Franklin Roosevelt was Jewish?

              News to me…

              1. Someone claimed Winston Churchill was Jewish?
                Someone claimed Franklin Roosevelt was Jewish?

                News to me…

        2. Perhaps the Judge is an intelligent & observant woman who’s seen the lives of other Republicans maliciously destroyed with spuriousallegations of racism.”

          Or perhaps the Judge is an intelligent and observant woman who’s seen the lives of other Republicans maliciously destroyed with accurate allegations of racism.

          Either way, the important thing is to protect Republicans from consequences of racism.

          1. Or perhaps there isn’t a distinction between the two, and “racists” deserve a protected class status similar to LBGTQ.

            1. THE VOLOKH CONSPIRACY

              This blog has operated for
              45 DAYS
              without using a vile racial slur
              and for
              486 DAYS
              without engaging in
              viewpoint-based censorship.

              1. Whiskey Tango Foxtrot?

                1. Seems straightforward.

                  The proprietor of this blog most recently published a vile racial slur 45 days ago (a relatively long stretch, by recent standards). The most recent documented viewpoint-driven censorship at this blog occurred 486 days ago.

                  So far as I am aware, anyway.

                  1. And that’s relevant to my point — how?

                    1. Good conduct should be recognized and rewarded. This seemed a good time to note the progress.

            2. ‘racists’ deserve a protected class status similar to LBGTQ”

              Good luck with that.

    2. Violating a judicial order, even if it is unconstitutional, does not provide a defense to contempt.

        1. Really. Only the courts get to decide something is unconstitutional and therefore, void.

          1. Bullshit….courts have no singular claim to deciding what is Constitutional…..you have no citation for that. If the sovereign people hold a matter to be unconstitutional, the courts have no recourse….simple.

            1. It’s only the most famous Supreme Court decision of all time, Marbury v. Madison. Perhaps you’ve heard of it? Try reading it.

      1. ” Violating a judicial order, even if it is unconstitutional, does not provide a defense to contempt. ”

        My first big win in federal court stands generally for the converse.

      2. Justice Scalia once wrote: “St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.”

        Jimmy, I think the more relevant issue is that if the defendants aren’t going to observe the law, why should they expect the cops to? If there are no rules, then there are no rules as to what the cops can do in retaliation, and that’s not a path we want to go down…

        1. When did the defendants refrain from observing the law?

        2. I was merely trying to restate the general rule. If someone has case law to the contrary would love to see it. Not my specialty, but generally I have always read and been told the remedy for an overbroad or unconstitutional court order below is to appeal it. Violating it open you up to contempt even if the appellate court later finds it unconstitutional or illegal.

      3. Violating a judicial order, even if it is unconstitutional, does not provide a defense to contempt.

        It does in some states.

  5. That seems exactly what the newspapers who have published the officer’s name are doing. Daring a contempt citation which they will fight all the way to the Supreme Court and probably win.

    1. It’s either that thing you said, or they were publishing his name when there was no order not to, Definitely one or the other.

    2. 1. Newspapers aren’t bound by the order, which is addressed only to the defendants; they aren’t risking a contempt citation.

      2. Under the so-called “collateral bar” rule, see, e.g., Walter v. City of Birmingham (1967), the unconstitutionality of an injunction is not a defense to a contempt of court prosecution for violating that injunction. Courts expect people to comply with the injunction, while challenging it through appeal, including (in free speech case) the right to immediate appeal that this brief discusses.

      3. There are some exceptions to the collateral bar rule, including for the “transparently invalid” orders, and perhaps this order qualifies for that exception; but I wouldn’t count on courts so concluding (even if they conclude that the order is unconstitutional).

      4. Some jurisdictions — California is the chief example — don’t follow the collateral bar rule. But Ohio does follow the rule:

      [A] party may be held in contempt for violating an invalid injunction provided that the injunction is not “transparently invalid or ha[s] only a frivolous pretense to validity.” Ordinarily, a party faced with an invalid injunction must have it modified or vacated. It may not simply be ignored.

      1. This one would seem to be “transparently invalid”.

        1. It would seem that way to me — but you can see why the defendants might be hesitant to rely on that exception. I certainly wouldn’t advise them, “Sure, go right ahead and violate the order, it’s obviously transparently invalid so there’s no chance you’ll be held in contempt.”

          Note also that they are defendants in the underlying libel case, which this judge will keep presiding over. They therefore have an extra reason not to just flatly violate the judge’s order.

      2. Violate the injunction, take the punishment, Judge Shanahan gets booted from the bench, Constitution wins!

        1. How many Federal Judges actually are impeached, and how many for a bad ruling?

          The last I heard of was Alcee Hastings, and that was for bribery.

          1. Not that this will change the analysis much, but this case is being litigated in state court, before state judges.

          2. Hastings was also a Democrat. Big surprise…

            1. If he was a Republican, he’d have been better at taking bribes and wouldn’t have gotten caught.

              That what you mean?

  6. Legal and constitutional issues aside, the public policy problem is that no matter which rule is adopted, innocent people are going to end up getting hurt. Yes, if a police officer makes racist comments, the voters who employ him have a right to know, but that doesn’t mean that every accusation of racism that stirs up an internet mob is legitimate. False accusations do get made, stuff does get taken out of context, and identities do get mixed up. Sometimes mobs lynch people who really are guilty, but not always.

    On the other hand, not everyone who claims to be innocent really is innocent, so if you put your emphasis on protecting people from false accusations, then it hampers people who are legitimately trying to publish truthful information.

    So at some level it comes down to which group of innocent people are you more worried about, realizing full well that however you answer that question, innocent people are going to get hurt.

    1. Sometimes mobs lynch people who really are guilty, but not always.

      Exactly…..

  7. So this clown cop is Officer Ryan Michael Olthaus. Twelve years on the force, SWAT team commando and self appointed skull crusher. On the gang bander task force. Had a fb page under name Michael Ryan which made his look like a SS storm trooper under Himmler. Hilarious guy. Just the type that would shoot your dog for being black.

  8. I have not seen the video or an image of the offending action that was the basis for the social media posting. Was he making the gesture as a racist statement or was he signalling “okay” to another person?
    My wife and I used to use the term “OK” as a term of affection (we should have become a couple sooner; “Sooner” is associated with people from Oklahoma). Now we are reluctant to use the term or the gesture for fear of being accused of being white supremacists (which is laughable since we are both Jewish and she is of Japanese descent).

    1. The whole “The OK sign is racist” thing is a damned 4chan joke that the media took hold of. It is not, has not, and will not ever be racist.

      1. It was an attempt to expose gullible rubes who should not be taken seriously. And it continues to work very well for that purpose.

      2. ” It is not, has not, and will not ever be racist.”

        Unless, of course, the racists claim it and decide to keep it, like they did the swastika.

  9. I don’t consider this a racist image.
    https://pbs.twimg.com/media/EbVpLAEXsAUt75M?format=jpg&name=small

    Isn’t it a textbook example of your right to use deadly force to save the life of another person?

    1. “Isn’t it a textbook example of your right to use deadly force to save the life of another person?”

      Not if the textbook is any good.

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