Free Speech

Judge Upholds Pseudonymity of Cincinnati Police Officer Who Is Suing His Critics for Libel

The question remains pending before the Ohio Court of Appeals.

|The Volokh Conspiracy |

I wrote about the case (in which news outlets, the defendants, and I are opposing pseudonymity) a few weeks ago here. Yesterday, WKRC (James Pilcher) wrote about the latest hearing, in which Judge Megan Shanahan has ruled that the case can continue to proceed pseudonymously:

Shanahan said the officer faces danger in the current climate for the reason in keeping his name out of the court record. She listed off several examples of other attacks on police nationally.

"Must we wait until this officer's wife is stabbed in the eye with an ice pick on her doorstep before we find real-world evidence [of malice or threat], which just happened a few states away?" Shanahan said as she issued her ruling….

[The officer's lawyers] argued the officer had been threatened online, including threats to post his home address.

I appreciate the judge's concern about the officer's possible safety, but her approach is not consistent with the general American rule regarding openness of court records: Under the "officer faces danger in the current climate" theory, essentially any lawsuit against or by police officers—or other controversial public officials—would be pseudonymous. For better or worse (I think for better), that is not the way our system handles such matters: Knowing the identities of the parties, especially public officials, are involved in legal controversies is important to allowing the public to monitor what courts are doing:

Judicial proceedings are supposed to be open, as [the precedents] make clear, in order to enable the proceedings to be monitored by the public. The concealment of a party's name impedes public access to the facts of the case, which include the parties' identity.

To be sure, pseudonymity is sometimes allowed, but it's not enough to cite the regrettably everpresent risk that some people will be upset at a public official involved in the case.

The judge has agreed with much of a different part of our request, which is to unseal the police officer's affidavit; more details on that should emerge Monday. Many thanks to my pro bono lawyer Jeffrey Nye (Stagnaro, Saba & Patterson) for all his work on the case, including doing much of the pro-unsealing oral argument today.

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  1. As always, my view is that there must be some way to litigate defamation cases that avoids the wrath of the Streisand Effect. Forcing defamation plaintiffs to shout the allegedly defamatory statements about them from the rooftops is just stupid. Litigating under pseudonym seems like a reasonable compromise. Otherwise you might as well get rid of the tort of defamation altogether.

    1. Completely disagree. In the United States, the clearest and most reliable path to victory for a plaintiff in a defamation case is to show that what was said about them is false. If I believed that I could win a defamation case by demonstrating the falsity of what had been said about me, I’d be happy to have it in the public record. And if you’re worried about the Streisand effect in the event that you lose, then you weigh that in your decision about whether or not to sue in the first place.

      And really, the whole Streisand Effect analogy in this debate in inapposite anyway, because the vast majority of these types of cases involving regular (i.e., non-famous) people never become the subject of major news stories anyway. Take this particular case as an example. It is the officer’s request for pseudonymity that gives the case its publicity; had the case proceeded normally, I probably would never have even learned of its existence, but now I know about it and am interested in it precisely because the officer doesn’t want to be identified.

      Finally, if there is going to be a “trend of police officers going after critics in court,” as the article cited in Eugene’s first story on this case suggests, then those police need to be willing to do it within the regular mechanisms of public scrutiny that are part of the court system. Allowing police to remain nameless just adds another legal exception to the whole raft of legal exceptions that they already enjoy, like qualified immunity.

      1. Amen. Well said. Truth is the best disinfectant, someone nearly said once.

      2. Just out of curiosity: What is it about US politics in the last 4-5 years that makes you believe that fact-checking lies works? No matter how trustworthy the fact-checker (and they don’t come much more trustworthy than a court of law), people believe the lie not the fact-check, particularly if the lie is something they want to believe and particularly if the lie is shouted from the rooftops much louder than the fact-check.

        In a defamation case, if your only real remedy is a retraction and/or court judgment, in many cases you might as well not bother. Particularly if the defamatory statement in question is going to be just one Google search away for the rest of your life. So I suppose another possible compromise is suitably high punitive damages, to straighten out the incentives a bit, but I believe prof. Volokh wouldn’t be a fan of that either.

        Finally, for the record, I was in no way suggesting that there should be a special rule for the police.

        1. In a defamation case, if your only real remedy is a retraction and/or court judgment, in many cases you might as well not bother.

          Agreed. The officer in question would have been better served by an attorney who gave sensible advice like this.

  2. It’s human nature that first impressions stick and that retractions get a lot less notice than the initial accusations. If we really value “innocent until proven guilty”, maybe that should apply to reputations, too.

    I’d be okay with a rule that allowed more liberal pseudonymous filings while the trial is in progress but, absent extraordinary circumstances, immediately lift the pseudonymity as soon as the trial is over.

    1. Would you apply it to ALL police and court proceedings? Anonymity from arrest for everyone?

      Why should this policeman, or all police in general, not have to live by the same rules which they dish out on innocent people every day just so they can suffer from the ride? Why should not police, especially, have to suffer from the consequences of their perceived actions? Why is the gander too good for the goose’s sauce?

      1. I would. The “perp walk” is an evil that should be stopped immediately. I strongly agree that there should be no double-standards.

        That said, there may be cases where pseudonymity is pointless. Probably many such cases. I’d still make it something that the parties have to apply for and justify. I’d just set the bar for justification lower than is currently the case. I’d balance that by a rule that sets the bar for justification much higher after the trial.

        1. But as Eugene says in his comments, if you accept that rationale given by the judge in this case, that pseudonymity is appropriate because of the “current climate” of public concern about policing, then that would serve as a blanket guarantee that any officer involved in litigation could have his or her name concealed.

          The reasoning for granting pseudonymity in this case, or any other, should rely on clearly articulable facts specific to the particular case, rather than some nebulous argument about the “current climate.”

          1. I do not agree with the rationale used by the judge in this case but that’s also not really the point. I am attempting to argue for a change to the general rule. And, yes, it would be a “blanket guarantee” that any officer or anyone else involved in litigation could have his/her name concealed temporarily – that is, while the trial is in progress. I am attempting to argue that the vast majority of the advantages we see to openness and transparency could be achieved by making the proceedings open in hindsight and not necessarily contemporaneously.

  3. Deep state extending its power to undermine process. Publicity is the price paid for litigation. Judge only granted the improper request because plaintiff is a cop. Cops are special. The muscle of the deep state. Police Union is in on this. The Thin Blue Line is usurping the power of the courts to flex their muscle. How dare the peasants criticize the King’s guard?

    Cops are public officials. They are not Saints by any means, they get the wrath of the public who grow tired of their application of force. Here the court and the cops conspire to defeat the rule of law. The lawsuit will fail. The police will be criticized and ridiculed for their abusive conduct. The suit will blow up in the face of Officer RYAN MICHAEL OLTHUAS.

    Everyone knows who OLTHAUS is, so what is the big deal that his name is not on a piece of paper in the court file? Court drama? Propaganda? Judicial tyranny? Deep state antics?

    Public right to scrutiny of matters in a public forum! 1A.


  4. Did I miss an actual incident of a police officers wife being attacked on her doorstep with an icepick to the eye?

    Is that a common occurance or was the Judge indulging in extreme hyperbole?

      1. Except that victim was the officer, not the officer’s wife.

        And the incident occurred near the assailant’s home, not on an officer’s doorstep.

        And the officer was responding to a call — going toward the assailant, rather than having the assailant pursue the officer.

        And there is no indication the assailant knew the officer’s name, or address, or breakfast pastry preference.

        This judge seems a flailing dope. She probably is savvy enough to wear her QAnon gear under her robe, though, rather that on her sleeve.

        1. The articles are extremely uninformative, but as best I can tell the allegation is that the guy knocked on the police chief’s door, stabbed him when he answered, and then ran off and barricaded himself in his trailer.

      2. I have to say I almost agree with the Rev – except for that last paragraph of ad hominem attack on teh judge.

        1. I have lost my taste for political correctness. I now call a backwater, right-wing c@p succ@r a backwater, right-wing c@p succ@r.

          (redacted to comply with Prof. Volokh’s censorship standards and practices)

  5. Must we wait until this officer’s wife is stabbed in the eye with an ice pick on her doorstep before we find real-world evidence [of malice or threat], which just happened a few states away?” Shanahan said as she issued her ruling…

    Did she hire Dr. Ed as her law clerk or something?

  6. This judge is a church-going former prosecutor who ran for judge as a ‘law and order’ Republican 10 years out of law school. Her husband is a Republican prosecutor. This county adjoins Indiana and Kentucky.

    I would expect a White police officer grappling with accusations of racism to fare remarkably well in her courtroom, regardless of what the law indicates. The other side might be lucky to avoid sanctions — until an appellate court can impose some adult supervision.

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