The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Challenge to Prior Restraint on Critics of Police Officer Ends With a Whimper
From today's Ohio Supreme Court opinion in M.R. v. Niesen:
A common pleas court issued a temporary restraining order ("TRO") prohibiting Julie Niesen, Terhas White, and others from publishing the personal identifying information of Ryan Olthaus, a Cincinnati police officer. We are asked to decide whether a speech-restraining TRO is immediately appealable. But that issue must be left for another day because the TRO has expired and this appeal is moot….
Olthaus filed a civil complaint against Niesen, White, and several others in the Hamilton County Common Pleas Court. The complaint alleged that in the summer of 2020, Olthaus was providing security and crowd control for a public forum at a Cincinnati City Council committee meeting. At the meeting, a large crowd of citizens called for the city to defund the police. At one point Olthaus made the hand signal for "okay." Some in the crowd interpreted this gesture as a symbol of white supremacy. Among them were Niesen and White, who quickly posted on social media calling Olthaus a white supremacist.
After Niesen, White, and others accused Olthaus of being a white supremacist, Olthaus sued them for defamation, false-light invasion of privacy, and other claims. Olthaus sought to proceed under a pseudonym and to file an affidavit under seal. (In State ex rel. Cincinnati Enquirer v. Shanahan (2022), this court held that he could not proceed anonymously.) Olthaus also sought a TRO and a preliminary injunction compelling Niesen, White, and others to refrain from posting, and to remove, social-media posts referring to him as a white supremacist and restraining them from publishing his personal identifying information….
[The court issued] a TRO restraining Niesen, White, and another defendant from publicly disseminating Olthaus's personal identifying information. [The timing for the order, and the extension, is important but I'll quote it just in the body of the opinion. -EV] [Defendants appealed. -EV] The First District Court of Appeals, however, concluded that the TRO was not a final, appealable order. 2020-Ohio-4368, ¶ 13. Niesen and White appealed to this court, submitting that a court-imposed prior restraint on speech is immediately appealable, and this court accepted jurisdiction….
Niesen and White advance serious arguments that a TRO that acts as a prior restraint on speech should be immediately appealable. But before this court can address the merits of their appeal, we must be sure that there remains an "actual controvers[y]." If the controversy has come and gone, then this court must dismiss the case as moot.
The requirements for and scope of a TRO are governed by Civ.R. 65(A). That rule provides that a TRO shall expire by its terms within such time after entry, not to exceed fourteen days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for one like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be set forth in the order of extension.
The TRO in question was entered on July 24, 2020. The common pleas court did not issue an order to renew the TRO until August 13, 20 days after the TRO was first entered. But by that time the TRO had already expired, and under the plain terms of Civ.R. 65(A), the court lacked authority to extend the TRO. A TRO may only be extended "within the time so fixed" by the original TRO. (Emphasis added.) Id. The TRO did not include an expiration date, but its duration January Term, 2022 5 could not exceed 14 days from the entry. See id. Thus, the TRO expired on August 8, 2020. And even if one accepts the dubious premise that the trial court's August 13 order somehow extended a TRO that had already expired, the extended TRO would have expired on August 27, 2020….. Because the TRO at issue is no longer in effect, the appeal of the TRO is moot.
None of the exceptions to the mootness doctrine save this appeal from dismissal. The closest any exception comes to being applicable is the one for issues that are capable of repetition yet evading review, but it too does not apply. An issue is capable of repetition yet evading review if "'(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.'" The first element is easily satisfied, as it is the rarest of cases that can be fully litigated in a matter of weeks. The second element, however, has not been satisfied.
It is not enough for an issue to be capable of repetition between some parties; the issue must be capable of repetition between the "same" parties…. But it is beyond unlikely that this issue will repeat itself between these parties. The TRO has already expired and can no longer be renewed. See Civ.R. 65(A). And in Shanahan, this court determined that Olthaus may not proceed anonymously and must proceed under his proper name. So there is no real possibility that this controversy will reoccur: any further effort by Olthaus to prevent the defendants from identifying him would be futile.
It is our duty to only "decide actual controversies between parties legitimately affected by specific facts." Because the TRO at issue has expired, this appeal no longer concerns an actual controversy. Accordingly, this court is duty bound to dismiss this appeal as moot….
My UCLA First Amendment Amicus Brief Clinic filed an amicus brief in the case, which focused on the substantive unconstitutionality of the order and the need for immediate appellate view of such speech restrictions; many thanks to our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), and my fellow amici Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O'Neill, Margaret Christine Tarkington, Aaron H. Caplan; the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group. (I also orally argued on behalf of amici before the court.)
You can see the heart of the argument, and read the full brief here. The brief didn't discuss mootness, largely because the Court of Appeals decision, https://scholar.google.com/scholar_case?case=3034261682193483241, hadn't mentioned anything about it; M.R. and his lawyers spent a lot of time and money defending the order, presumably on the assumption that it was indeed in effect; and the Ohio Supreme Court granted review of the order, rather than just dismissing the appeal as moot at the outset. We had therefore been hoping that the Ohio Supreme Court would likewise focus on the First Amendment issues (whether the substantive or procedural ones or both), but that turned out not to happen here.
For more on the pseudonymity/sealing side of the case (the Shanahan decision to which the court refers), see here. There, the Cincinnati Enquirer and I were intervenors, and Jeff Nye was my lawyer (and argued on my behalf before the court).