Free Speech

Ohio S. Ct. Reverses Order Blocking Man from All "Posting About" His Sister and Mother

"Even if past [mentally distressing] speech that an offender made to a person ... could be considered ... integral to the criminal conduct of menacing by stalking [and thus unprotected], we do not believe that this principle may be applied categorically to future speech ... directed to others."


The case is this morning's unanimous Bey v. Rasawehr, written by Justice Michael Donnelly; congratulations to Dennis E. Sawan (Sawan & Sawan, LLC) on the victory. (I filed an amicus brief and amicus reply brief on behalf of the Electronic Frontier Foundation, the 1851 Center for Constitutional Law, and Professors Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku [though not as to the reply], Stephen Lazarus, Kevin Francis O'Neill, Margaret Tarkington, and Aaron H. Caplan, and myself, and argued at the Ohio Court of Appeals stage and at the Ohio Supreme Court stage; many thanks to pro bono local counsel Karin L. Coble for all her help over the years with this! Thanks also to my student Sara Williams, who worked on the briefing with me.)

The court's reasoning tracks the reasoning of appellate courts in California, Florida, Illinois, Michigan, and Washington, but is much more detailed, and is a welcome addition to that body of precedents. It's also the decision I was waiting for in order to finish up my short article tentatively titled Overbroad Injunctions Against Libel and Harassment, which I'll write about when I have a draft.

[1.] The facts:

In November 2015, appellee Joni Bey's husband died. Approximately seven months later, appellant, Jeffrey Rasawehr, Bey's brother, ostensibly began writing and posting public comments on and the Lima News website that accused Bey of having contributed to her husband's death and that further accused local public officials of having failed to investigate the circumstances of his death…. [Later, a] billboard located near Bey's home [was put up with] a large portrait-style picture of Rasawehr with the message, "Jeff Rasawehr says, 'LEARN ABOUT COUNTY CORRUPTION & COVER-UPS AT…'" The website contained a series of Internet postings apparently authored by Rasawehr …, in which Rasawehr reiterated his accusations against Bey and various local public officials.

Rasawehr's father died in January 2008. And in June 2016, Rasawehr's mother, appellee Rebecca Rasawehr, began receiving treatment similar to that of Bey. The June 2016 and subsequent 2017 Internet postings, ostensibly authored by Rasawehr, likewise accused Rebecca of having contributed to her husband's death and again accused local public officials of having failed to investigate that death.

[2.] Bey and Rebecca Rasawehr then got "civil-stalking protection order[s]" against Jeffrey Rasawehr; those orders, in relevant part, barred him for five years

from posting about Petitioners on any social media service, website, discussion board, or similar outlet or service and shall remove all such postings from that relate to Petitioners. Respondent shall refrain from posting about the deaths of Petitioners' husbands in any manner that expresses, implies, or suggests that the Petitioners are culpable in those deaths.

[3.] The court held that the orders were prior restraints, which were presumptively unconstitutional:

 "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.'" "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." A prior restraint is not unconstitutional per se but bears "'a heavy presumption against its constitutional validity.'" …

For example, in Organization for a Better Austin v. Keefe  (1971), an Illinois court enjoined a "racially integrated community organization" that was critical of a local real-estate broker's business practices "'from passing out pamphlets, leaflets or literature of any kind, and from picketing, anywhere in the City of Westchester, Illinois.'" The United States Supreme Court ordered that the injunction be vacated, noting [among other things] "… that in a case of this kind the courts do not concern themselves with the truth or validity of the publication…." … [E]ven if the petitioners' peaceful distribution of literature was intended to have a coercive impact on the respondent's business practices, that "d[id] not remove them from the reach of the First Amendment." "… Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record…. [R]espondent is not attempting to stop the flow of information into his own household, but to the public. Accordingly, the injunction issued by the Illinois court must be vacated."

The court distinguished several federal appellate cases upholding the federal stalking statute (some of which I think didn't sufficiently protect the First Amendment) because "they involved prosecutions and convictions under that federal statute for past speech that was integral to the course of criminal conduct" and did not "involve[] prior restraints on future speech like those imposed here by paragraph nine."

[4.] The court concluded that the CSPOs were content-based:

It is inescapable that a regulation of speech "about" a specific person (or likely any other specific subject of discussion) is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation…. [A]ppellees do not seriously dispute that the regulation of speech concerning their alleged culpability in the deaths of their husbands is a content-based regulation. Appellees do, however, [contend] that the prohibition from posting about them in general … is … content-neutral …. They rely on Commonwealth v. Lambert ([a] 2015 [Pennsylvania appellate decision]), … [that ruled that] a comparable protective order … was "not concerned with the content of Appellant's speech but with, instead, the target of his speech, namely, Plaintiff, whom the court has already deemed the victim of his abusive conduct."

But the "target" of such speech necessarily concerns the subject matter of the speech. It "cannot be justified without reference to the content of the prohibited communication." It requires an examination of its content, i.e, the person(s) being discussed, to determine whether a violation has occurred and is concerned with undesirable effects that arise from "'the direct impact of speech on its audience' or '[l]isteners' reactions to speech." …

The court went to hold that the speech limited by CSPOs didn't fit within the First Amendment exception for "speech integral to criminal conduct" (the appellees didn't contend that the speech fit within other exceptions, "such as defamation or true threats"):

But there has been no judicial determination here that future postings Rasawehr might make will be integral to the commission of the crime [of menacing by stalking] and thus unprotected by the First Amendment…. "… The presumption against prior restraints is heavier— and the degree of protection broader—than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable." …

Even if the trial court here determined solely for purposes of civil protection that Rasawehr violated R.C. 2903.211(A) [the menacing-by-stalking statute], there has been no valid judicial determination that any future expression Rasawehr might make to others through posted messages would necessarily be integral to the criminal conduct of menacing by stalking in violation of R.C. 2903.211(A). Even if past speech that an offender made to a person that the offender knew would cause that person to believe that the offender would cause physical harm to that person or would cause mental distress to that person could be considered speech that was integral to the criminal conduct of menacing by stalking, we do not believe that this principle may be applied categorically to future speech—that is by its nature uncertain and unknowable—directed to others.

[5.] The court held that the orders couldn't be upheld under "strict scrutiny," i.e., as "the least restrictive means to achieve a compelling state interest":

Assuming, without deciding, that there is a compelling state interest in protecting civil-stalking victims from fear of imminent physical harm or mental distress, the means chosen here are not the least restrictive. The scope of paragraph nine, which prohibits Rasawehr from posting anything about appellees is remarkable. It has no defined limits. Anything that Rasawehr might ever post about appellees, no matter how innocuous, would conceivably subject him to proceedings for contempt of court if not criminal prosecution under R.C. 2919.27 for violating the CSPO. By any measure, this regulation of speech is demonstrably overbroad….

We by no means discount any mental distress and embarrassment that appellees experienced, nor do we doubt that future statements may cause additional mental anguish. But speech does not lose its protected character simply because it may be upsetting and cause distress or embarrassment. See Snyder v. Phelps (2011) (antimilitary and homophobic statements near funeral for serviceman killed in action was protected despite jury's finding that it was "outrageous" as an element of intentional infliction of emotional distress); NAACP . Claiborne Hardware Co. (1982) ("Speech does not lose its protected character … simply because it may embarrass others or coerce them into action").

Moreover, appellees are not without civil tort remedies to redress any cognizable injuries they claim to have suffered as a result of Rasawehr's statements about them, including but not necessarily limited to actions for defamation. But the special statutory process to provide expedited civil relief to stalking victims under R.C. 2903.214 serves primarily to protect victims from imminent threats of physical harm and mental distress. It is not designed to be a shortcut or substitute for conventional civil remedies and thus is not the appropriate means to obtain the panoply of monetary damages and injunctive relief that may properly be awarded through such proceedings. In any case, the potential abuse of speech rights in the future cannot justify the blanket prohibition imposed here on Rasawehr's speech before it has even been uttered.

[6.] Finally, the court rejected the view that this speech was less protected because it was on a matter of purely private concern. The speech, the court held, was connected to public matters, because "Rasawehr's statements purported to implicate local public officials in an alleged criminal conspiracy," and such speech "is protected by the First Amendment even though the speaker or writer was motivated by hatred or ill-will." And, more broadly,

In any case, our role here is not to pass judgment on the truth, plausibility, or First Amendment value of Rasawehr's allegations. To the extent his statements involve matters of both private and public concern, we cannot discount the First Amendment protection afforded to that expression. We most assuredly have no license to recognize some new category of unprotected speech based on its supposed value….


NEXT: Audio Edition of My Book "Free to Move: Foot Voting, Migration, and Political Freedom"

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  1. What would have happened had the sister put up a billboard with his picture and something like “This man is mentally ill, ask the county to get him the help he needs.” Maybe including the phone number for the mental health folk.

    1. Billboards are expensive. So are lawyers. I doubt the added expense of dueling billboards would decrease the lawyer cost.

  2. This is not sarcasm or me being facetious. Does anyone know of a good (or great) book, essay, or speech/presentation on how lawyers grapple with the immediate adverse effects of their advocacy, even if the benefit to larger, important legal principles are generally acknowledged by society?

    For example, in cases like this (maybe not this exact case, but similar free speech vs libel or revenge porn type cases), I can see the importance of the legal work, but there are real human beings who are victims who are harmed by the outcome.

    Obviously in criminal defense, lawyers can help persuade a jury to hang or vote not guilty even when the lawyer himself or herself knows (or has strong reason to know) that the client is guilty and that the victim and/or victim’s family will be devastated by the defendant walking free, and even worse the client may commit other crimes once released (I’m thinking of defending accused psychopathic murderers, child molesters/killers, etc.). Obviously the importance of a vigorous defense is evident to most readers of this blog, and I assume most of society at large (but certainly not all). But how does a lawyer deal with things internally/mentally if they know an individual is guilty is charged, but successfully convince a jury that the State failed to meet its burden of proof, and the client walks and commits more crimes, or the victim has to live knowing that his/her rapist or molester, or the person who killed his wife or child, walks free?

    One case that always stuck in my head is San Diego attorney Steven Feldman, defending David Westerfield who was ultimately convicted of kidnapping, raping, and murdering sweet little Danielle Van Dam (a neighborhood child who was 8, I think). It came out through a leak (police or DA, I’m sure) that in plea negotiations, Feldman offered to have Westerfield show them where he dumped the body if they took the death penalty off the table. So he of course knew his client was guilty. But when the deal was rejected, he vigorously defended Westerfield through verdict, making an impassioned plea for a Not Guilty verdict. Fortunately the body was found during trial by volunteer searchers and he was convicted, but a lot of people despised Feldman for what was almost certainly ethical and proper legal advocacy.

    But I’d love to read someone who has grappled with this issue at a deep and personal level. Thanks for any suggestions.

    1. I don’t believe you are a lawyer or you would have couched your questions in different terms.

      If a lawyer knows in his mind that his client is guilty, it is per se unethical for him to continue to urge that his client is not guilty. He or she should withdraw and let the accused find counsel elsewhere.

      I am a retired lawyer so maybe some of the real lawyers who frequent this great blog can correct me if I’m wrong.

      1. Real lawyer who frequents this blog.

        You’re wrong.

        1. Extremely wrong.

      2. Also a real lawyer. Noscitur is correct. I’m pretty sure this was a practice MPRE problem for me where the answer was: no it’s not unethical to represent a guilty client.

        Whether an attorney believes or knows their client to be guilty* in a criminal case is completely irrelevant to what their job is. Their job is to protect their client’s rights and hold the government to their extremely high burden. If attorneys routinely had to withdraw for believing or knowing their client to be guilty*, the right to counsel would be meaningless and we wouldn’t have public defenders.

        Do you really think a public defender or appointed counsel is allowed to withdraw from a case because they realized their client is guilty after getting the facts? Of course not.

        The main ethical consideration is that you can’t knowingly prevent false statements or testimony to opposing counsel and the tribunal. But not doing that is absolutely not the same thing as representing a client you know is guilty.* Since the state has the burden to prove the case, defendants are legally not guilty until he changes his pleas or they prove it to the Court. An attorney does not act unethically if they take the whole thing to trial for an obviously guilty* client and force the government to prove their case to a jury while trying to poke holes in it along the way.

        *Also what do we mean by “know he is guilty” anyway? Because he did the thing accused of? Because he did the thing accused of and you know it meets the elements of at least one crime charged? Or of all the crimes charged? Because he did the thing accused and know it’s all the crimes charged and that the state has enough evidence to convince a jury of their guilt?

        1. Perhaps what Mr. Ervin was thinking of was the fact that attorneys can’t suborn perjury, so if they know for a fact that their client is going to take the stand and lie, they have to distance themselves from it. (If it were a witness other than the defendant, they couldn’t ethically put the witness on the stand at all. But defendants have the right to do so.) They may have to let the client testify narratively rather than via direct examination.

          1. Perhaps, but he’s still speaking far too broadly. An ethical counsel who got to that stage would have to inform the court (at sidebar) that he strongly advised his client against that course and that the testimony he is going to be false to his knowledge. But that’s still not the same as it being per se unethical to represent a guilty client.

      3. Don’t do criminal law anymore but you are so very wrong. All are entitled to a vigorous defense.

    2. The book (circa 1950s) and movie (circa 1980s) _Cape Fear_ addressed this — the book is better.

    3. Abbe Smith has written on this a lot.

      1. Thanks so much. A search of that name led me to this panel discussion on the topic (90-minute YouTube video titled “How can you represent those people?”), and I’ll be watching it today.

  3. And the other side of this is the increasing legitimacy of failing to represent the wishes of mentally ill clients.

  4. Something something Section 230 Something Something.

    — Lathrop.

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