Critics of Police Ordered Not to Mention the Name of a Particular Policeman

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.

That strikes me as a clearly unconstitutional prior restraint. The Ohio Supreme Court has held (and most states agree) that,

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.

Comments

[PublicNameNotInUse]

While all true, there's still a problem that needs to be addressed.

If plaintiffs are allowed to use the officer's name in social media, the officer will continue to be called out by name, likely incorrectly, as a white supremacist, Nazi, or whatever the Cult of Progressivism is using these days. It's not difficult to see this leading to violence against the officer and family, given the "Burn first, ask questions never" approach to protesting these days.

Prof. Volokh, how do you propose to keep defendants safe when the plaintiff is almost certainly going to raise a lynch mob while the courts do their thing?

[Rev. Arthur L. Kirkland]

The white Republican judge, a former prosecutor, apparently sees it your way, PNNIU. She issued a temporary restraining order -- no participation by defendants who have been forbidden to speak -- on behalf of her law enforcement colleague and set bond at $300.

The judge still hasn't found an opportunity on her calendar to provide the defendants even five minutes of the court's time, preferring to maintain 'justice by ambush' in favor of the police officer this case.

The clerk's office "erroneously" sealed the record until someone started asking questions.

Even at the confluence of Ohio, Kentucky, and Indiana, however, this order seems likely to stand precisely so long as this judge can avoid adult supervision.

[Rossami]

And that's different from police falsely arresting and very publicly perp-walking a suspect how, exactly?

The answer is easy - you keep defendants safe by stopping the lynch mob, not by stifling speech out of fear that someone might raise the mob.

[PublicNameNotInUse]

Also true, but a broad, theoretical, "We just stop the lynch mob" isn't a plan of action. These days, the mob will have formed, done what it wants to, congratulated itself, and dispersed before the court system realizes anything is amiss. You're mistakenly seeing this as a binary choice- do what the judge did or do nothing. Both choices are bad, but in real life there are always more than two choices.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You missed his point. Everything you worry about for this one policeman applies to everyone whose arrest is publicized by the police.

Every point you raise about the ease with which this one particular cop could be hurt applies in spades to everyone the police arrest. So go ahead, keep coming up with examples which apply to his argument.

[PublicNameNotInUse]

No, I caught the fact that he was trying to answer a question with pointless whataboutism.

[Rossami]

I am increasingly of the opinion that people who use "whataboutism" a) don't know what that really means and b) are just trying to deflect from the actual comment.

You said (and I'm paraphrasing) what about the cop who will be harmed by all the negative publicity. Implied in the comment is that the cop has not yet been convicted of anything. I replied (again paraphrasing) that if cops really cared about the harm of negative publicity, they would not be so aggressive about perp-walking and other publicity stunts with those they arrest. This cop fears being attacked by a mob but has no concern about the risk that he and his peers put others in on a regular basis. In other words, I was attacking the credibility of the cop's claimed fear of harm.

Regardless, "we just stop the lynch mob" is a plan of action. And, yes, it's the proper plan of action. Stop people from doing bad things - hopefully by intervening beforehand but more often by capturing and punishing the guilty afterward in order to deter future bad people. Prior restraint of free speech is not a proper response.

I agree that there are more than the two choices you laid out. There's option 3 - put the cop in protective custody. Option 4 - assign a security detail. Option 5 - issue a restraining order on actual conduct, not speech. Option 6 - any of the other paths open to us private schlubs who are equally vulnerable to mob attack. You're the one trying to argue that what the judge did was somehow the only right choice.

[NOVA Lawyer]

Yeah, this one isn't whataboutism because this cop got special protection which appears unlikely available to anyone else and you proposed, essentially, this cop should get special protections. Or should every defendant be protected from public exposure (whether perp-walks, being named by police/prosecutors, unsealed court documents, etc.), or should every defendant's name be protected if there is a chance that someone will publicize the allegations and thereby, possibly, subject that person to harassment?

It is not whataboutism to ask if you are seeking special protections for a cop or if you are proposing measures that apply to everyone similarly situated (whether cop or civilian).

[Hank Ferrous]

Prof V, there are the issues raised by PublicNameNotInUse. And then there is the likelihood that the accusation is a smear raised by anti-police sorts looking to be offended based on the everything is racist trope. Beyond this, the okay sign is just an okay sign. It can be & is used to troll those who see racism and white supremacy in everything. Additionally, nobody but the police officer knows why he used it, if he did. I am leaning toward his name being sealed is not unjustified until court proceedings are complete. Layman's opinion, but privacy and safety in one's personal life is important for those the political mobs hate.

[Number 2]

We lost power at our house during last week‘s tropical storm. Five days later, a repair crew arrived to fix the downed power lines. I was standing in the driveway when a member of the repair crew asked me to go into my house to confirm that the power was back on. I ran into the house, saw that the lights were on and the refrigerator was running, went back outside, and flashed an OK signal to the repairman...

OMG! I will need to boycott myself!

[Gasman]

Nahh..
You were flashing the Van Buren sign.

[santamonica811]

Geez, it's like your brain cannot summon the candlepower to apply context. I took a photograph at Yosemite, with a hiker doing tai chi, mid-stretch. His gesture looks exactly like a Nazi salute. And I also took photographs from recent demonstrations and counter-demonstrations where people (not terribly surprisingly, all white, young, male, with short hair) are doing that same exact gesture.

How on earth can we distinguish between these two situations, since the physical gesture is exactly the same? You, clearly, are arguing that, because the gesture is identical, that's the end of the issue, and it would be completely unfair to criticize the actual neo-Nazis. I suspect that most readers here would roll their eyes and think to themselves, "Thanks, but I'm perfectly capable of putting both images into context, and I know which one I find offensive and which one I find inoffensive."

The whole point of co-opting the OK sign was that it is taking something innocuous and using it as code. (It's also used regularly by scuba divers, and has been for decades, BTW) There will be situations where a casual observer (or even a well-informed observer) cannot tell if a particular use is code or not. And, in those situations, I'd agree with you that it's unfair to assume the worst. But you cannot see, or seem unwilling to acknowledge, that there are also situations where context makes it perfectly clear what the underlying motivation is. This does no credit to you.

[Noscitur a sociis]

No, the point was to "troll the libs" by fabricating a connection between a completely innocuous gesture and white supremacy.

Unfortunately, the trolls seem to have succeeded.

[Sarcastr0]

The thing is, like many of those 4chan trolls, it turned sincere. See also QAnon.

Does that mean all OK signs are proof of white supremacy? It does not. See context above.

Though weird hidden OK signs in photos do make me look twice.

[TwelveInchPianist]

"The thing is, like many of those 4chan trolls, it turned sincere."

Bullshit. Just because some of the people trolling the libs might have questionable views doesn't make the OK sign racist. That's ridiculous.

[Sarcastr0]

It's a shibboleth for those with 'questionable views' now.

Does that make it racist? Mostly no, but sometimes yes!

Symbols plus context contain multitudes.

[TwelveInchPianist]

"It’s a shibboleth for those with ‘questionable views’ now."

Making fun of people who think something stupid about the OK sign isn't racist, even if some of the people doing the mocking are racist. It really isn't that hard.

[Sarcastr0]

Yeah, I don't know what you're trying to push here.

A sincere commitment to using a symbol, even if facetiously, is still using that symbol.
And at some point it becomes just a committment as the joke fades over time but the ritual remains.

And externally, it's even more clear - these guys do this thing. This thing is a thing these guys due. Done.

[TwelveInchPianist]

Again, the fact that some people who use the symbol might be racist doesn't make it a racist symbol.

[Sarcastr0]

So in the end, I'm saying context matters with respect to the qualities of a symbol.

You're saying no it doesn't.

[NOVA Lawyer]

That's kind of stupid. If you know some people take a sign as racist and you use it in a context that you know is likely to make them think it's racist.....and, according to you, the person trolling has "questionable views", how is that not racist?

Pretending to be overtly anti-Semitic in order to make people who are particularly sensitive to anti-Semitism get upset, seems to aid the cause of anti-Semitism even if the motivation is primarily anti-social.

But then from prior conversations, you are a prescriptivist for whom words like "attack" mean what you think they should mean rather than what they've meant in general discourse for over 200 years. Consequently, perhaps you don't understand that speakers are responsible for conveying a particular meaning when using a word/sign if the speaker knows (as in this hypothetical case) that listeners/viewers will interpret the word/sign (given context) in a particular way.

It is just as distasteful as Prince Harry wearing a Nazi uniform to a Halloween party. Is Prince Harry a Nazi? He couldn't really complain about any confusion on that point when he did something he had to know would send a particular signal. He realized that and apologized. So should people who intentionally "troll" by knowingly signaling racism even if they aren't racist.

Does that mean you should never use an okay sign or be extra cautious about it, probably not. But if you do it knowing people will assume you are racist, you can't really complain about people assuming you are racist. You invited the misunderstanding.

[TwelveInchPianist]

"If you know some people take a sign as racist and you use it in a context that you know is likely to make them think it’s racist…..and, according to you, the person trolling has “questionable views”, how is that not racist?"

If some people are stupid enough to think that the OK sign is racist, and you use it in a context to highlight the stupidity, how is that racist? It's not, even if the person doing the highlighting is racist.

[NOVA Lawyer]

Twelve,

"and you use it in a context to highlight the stupidity"

Well, I guess that is the question, right? And you seem to have answered it incorrectly.

A police officer flashes a sign which he knows some people use to indicate affiliation with or support for white supremacists and directed at protestors of white supremacy (generally) who he knows will interpret the sign as signaling his own support for white supremacy, but (assuming the best possible facts for him and you) his sole purpose is to incite the protestors (not to actually signal support of white supremacy) and somehow you think the context is to highlight the protestor's stupidity? That it is unfair to assume he is racist or has sympathy for white supremacists?

Oh, wait. You must have meant the context was to highlight his own stupidity. As a police officer trolling protestors is, you must agree, incredibly stupid. Regardless of whether the protestors are stupid or not. His job is not to make his own political statement (in fact, I would imagine he is forbidden from it). His job is to maintain order, not take actions intentionally designed to provoke. His job is to uphold the highest standards of professionalism, not to engage in juvenile trolling that will further erode the citizenry's trust in law enforcement which is the very thing that resulted in the protests in the first place.

A person who uses a sign in a context where they know their audience will interpret it in a particular way and there is no other discernible reason to use the sign, that person is responsible for the miscommunication.

(For example on the other side of the spectrum, you can burn a U.S. flag with the meaning to you of "I love America", but if you do it at a Tea Party protest, you know they will think you have the opposite meaning. Or if you take that action with the intent to show how stupid they are to get upset over burning fabric, you still can't complain if they publicize you as a hater of America because you know what the symbol means to them and you intentionally conveyed contempt for them. You might think it worth it, as veneration of an object is pretty stupid, but you can't claim you are the victim of stupidity when you are accused of being anti-American because you knew that was the message you were conveying to them.)

The police officer acted stupidly. He knowingly created questions regarding whether he was a racist. And you defend him, as if he is not responsible for the consequences which he actually intended. But now he is uncomfortable with the attention he invited and wants to be anonymous. I have zero sympathy. He dishonored his uniform. Let him lie in the bed he intentionally made for himself.

[Dr. Ed 2]

Due process is lost in a war -- and this is a war.

[Sarcastr0]

Due process is not lost in war - look at the stink about Lincoln suspending Habeas.

Also this is not a war. Wars involve militaries, and not lots of protest signs without many casualties on either side.

You just really want to rationalize the government killing a bunch of angry people who disagree with you. What does that make you?

[Rev. Arthur L. Kirkland]

Perhaps he means the culture war.

That war has been settled. Dr. Ed 2 lost. Prof. Volokh lost. The Conspirators lost. Conservatives lost. Clingers lost. Bigots lost.

America has won.

[Dr. Ed 2]

"Also this is not a war. Wars involve militaries, and not lots of protest signs without many casualties on either side."

Look up the "Aroostook War" -- the only casualties were two Canadian militiamen who were attacked by a Black Bear.

[Sarcastr0]

From the wiki: "The term "war" was rhetorical; local militia units were called out but never engaged in actual combat. The event is best described as an international incident."

Come on, man.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

There was a case where someone had published a DVD decryption key, and someone (DVD player manufacturer, DVD standards organization, I do not remember) had fooled some judge into banning publication of that key, which as just a loooong number. So some clever guy saw the potential and started selling t-shirts with the three previous numbers, a line with an ellipsis, and the three next numbers.

A little harder to do with a human name, but no impossible. I wonder what the judge would think.

[ReaderY]

Suppose there is a credible threat to kill the police officer. Then,

1. It simply doesn’t matter whether libelous statements were made or not. Libel and its jurisprudence are irrelevant.

2. It could be argued that the compelling interest standard is met with less evidence than for libel, where the damage is to a person’s reputation and is addressable by damages. Murder and death are not similarly redressable by post-mortem money damages.

It could be argued that the balance of the harms is different, an injunction based on preliminary evidence is more appropriate, the case is more like publishing troop ship schedules, and the law of libel-based injunctions should not control.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Any "credible threat" must mean they already know enough to carry it out, ie, they already know where to find him.

[ReaderY]

Why?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How can any threat be credible if they don't know where their victim is?

[Rossami]

While that is a different scenario and, I agree, deserving of a different analysis, I have to quibble a bit with some of your points.

re: 2 - Our judicial system regularly considers death redressable by monetary damages. That's the entire point of 'wrongful death compensation' claims. They happen, are granted and appropriately valued all the time. Now, I will agree that there are loads of problems with our precedents in that area. It seems wrong to me that killing someone can result in lower punishment than rape, maiming or other "photogenic" injuries but that happens commonly. But those problems don't take away from the point that, at some level, murder and death are redressable post-mortem.

re: opening - Who gets to determine that the threat is credible? And how do you do that without a judicial decision properly briefed on both sides? If you grant such a TRO without an adversarial proceeding (which, I concede would take too much time), how do you prevent abuse of the process and inhibit the granting of TROs for non-credible threats?

[Longtobefree]

Any chance the court will rule that the "OK" sign is just an "OK" sign, and not a white power symbol?

[Rev. Arthur L. Kirkland]

That's what discovery and trials are for.

[Pavel Petrovich]

OK sign is hate speech, the ADL and Southern Poverty Law Center said so!!!! They invented it!!!!

[Bob from Ohio]

There is a compelling state interest in protecting the security of "public officials", even low level ones like police. Maybe especially low level ones who might lack financial or political resources.

[Rev. Arthur L. Kirkland]

Watching birthers flail is always entertaining.

[NOVA Lawyer]

This is libertarian / small government? So police get (de facto and actual) exemption from various criminal laws, protection from civil suits for criminal conduct via qualified immunity, profit off civil forfeiture, and now special protection from negative publicity that is not available to ordinary citizens? Do you realize your views skew heavily authoritarian?

When you provide this same protection to other low level government employees, I will buy your argument. Otherwise, it is just another way to make police unaccountable. (You know, how they tried to criminalize recording them in public while performing their duties? It is outrageous, Bob, that you support this creation of a special class to whom normal rules do not apply and who are exempted from consequences when they break even their special rules.)

[Allutz]

The good professor hitting one out of the park for once.

[Rev. Arthur L. Kirkland]

The temporary restraining order was rescinded?

[Dilan Esper]

If I represented the citizens, I would start referring to the cop as He Who Shall Not Be Named.

[David Nieporent]

Or "Voldemort," for short.

[NOVA Lawyer]

That would be hilarious. I would ask Eugene to do it, but it probably wouldn't help and I want him to win this one.

[Shamie Ervin iv]

https://www.techdirt.com/tag/ryan-olthaus/

Uh oh. Here is Techdirt using the cop's name, if not just to infuriate the woke 1A-phobe judge. I got a feeling the Great Volokh was prescient about what SCOOH would do.

[Michael Ejercito]

Eugene Volokh does have a lot of consistency on this issue.

https://reason.com/volokh/2023/07/25/against-one-sided-pseudonymity-in-sexual-assault-cases/

I s there any reason why this officer would be more or less entitled to pseudonymity than someone accusing someone else of sexual assault?