The Volokh Conspiracy
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Alleging Police Officer's "OK" Symbol Was "White Power" Hand Sign Is Constitutionally Protected Opinion
From today's Ohio Court of Appeals opinion in Olthaus v. Niesen, written by Judge Pierre Bergeron and joined by Judges Candace Crouse and Marilyn Zayas (for more on the general legal issue, which has arisen as to allegations of Communism as well as racism, see this post):
During the wave of racial justice demonstrations that swelled in the summer of 2020, the Cincinnati City Council convened a series of open meetings. At an open forum before the council's budget and finance committee meeting in June 2020, Officer Olthaus was assigned to provide crowd control and security.
During an interaction with defendant-appellee Terhas White, who was participating in a demonstration outside the council's chambers, Officer Olthaus flashed an "OK" symbol, pinching together his thumb and index finger. He maintains that he made this gesture in response to Ms. White asking him about the status of his fellow officer who had recently left the area after an interaction with demonstrators.
She and the other defendants-appellees (collectively, "Defendants"), however, saw things very differently. In various ways, they publicly criticized Officer Olthaus and his gesture, describing him, primarily in social media posts, as a "white supremacist" and calling the gesture a "white power" hand sign….
[Olthaus] alleges that Ms. White published social media posts referring to him as a "white supremacist kkkop" and "white supremacist piece of shit," and that Julie Niesen made posts in a similar vein. He also alleges that Ms. White knowingly submitted a false complaint with the city's Citizen Complaint Authority ("CCA"), accusing him of using a "white power" hand signal on the job. He accuses Ms. Gilley of filing a similar complaint with the CCA in which she asserts that he "[threw] up a white supremacy hand-signal towards citizens of color," which she perceived as "a threat to me, my children and so many others."
Finally, he claims that James Noe posted a profane insult about him on social media in the context of saying that he flashed "white power symbols to Black speakers," and that Mr. Noe posted a "deceptively edited photograph" of Officer Olthaus designed to portray him as a "white supremacist." [The supposed deceptive editing wasn't heavily litigated, and to my knowledge the editing didn't actually make any factual assertions about Plaintiff. -EV] He also claims Mr. Noe threatened to publicize his personal identifying information on social media.
Olthaus sued for defamation and related torts, but the court concluded that the defendants' speech was opinion rather than a false statement of fact:
Ultimately, the plainly subjective, value-based language and non-verifiability of Defendants' various statements dominate our assessment. Considering "the common meaning of the allegedly defamatory statement," an ordinary reader would understand the terms "white supremacist" and "kkkcop" to "lack[] precise meaning." They are inherently value-laden labels and "conjure[] a vast array of highly emotional responses that will vary from reader to reader."
The same applies for Defendants' interpretation of Officer Olthaus' "OK" hand gesture, which they imbue with a racist meaning, because an ordinary reader would understand that a speaker and interpreter might have different views on what the hand gesture means—a matter on vivid display in this litigation. Additionally, because labels like "white supremacist" "'lack[] a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.'" Whether a statement is verifiable depends upon whether it is "objectively capable of proof or disproof," but Officer Olthaus musters no argument for how someone would plausibly go about proving or disproving one's white supremacist bona fides.
Similarly, Defendants' assertions that Officer Olthaus flashed a "white power" hand sign is not susceptible to reasoned methods of verification. It is undisputed that he made a particular hand gesture—what is disputed turns on the subjective meaning of the gesture, with both the officer and Defendants offering competing interpretations.
Under the totality of the circumstances, the statements featured in the complaint represent opinions, rather than facts that can be tested to determine their veracity. Therefore, we agree with the trial court's reasoning, substantively unchallenged on appeal, that the Ohio Constitution insulates Defendants' opinion speech from Officer Olthaus' defamation claims. We further agree with the trial court that Mr. Noe's alleged threat to release his personal information is not a false statement of fact that could constitute defamation.
Our conclusion aligns with federal and state case law establishing that accusations of bigotry similar to those present here are not actionable in defamation because such language "is value-laden and represents a point of view that is obviously subjective." Vail v. Plain Dealer Publishing Co. (Ohio 1995) (commentary published in newspaper calling public-figure plaintiff a "gay-basher" and a "bigot" who "foster[s] homophobia" protected under Ohio Constitution); Lennon v. Cuyahoga Cty. Juvenile Court (Ohio Ct. App. 2006) (coworker's workplace accusation that plaintiff was a "racist" constitutionally protected); Condit v. Clermont Cty. Rev. (Ohio Ct. App. 1996) (accusations that plaintiff was a "'fascist,' and an 'anti-Semite,' contain elements of hyperbole and ambiguity" and thus are opinion and not actionable as defamation; collecting federal case law establishing that "accusations of ethnic bigotry are not actionable as defamation")….
Defendants are represented by Erik W. Laursen (Laursen, Colliver & Mellott, LLC), Justin Whittaker (Whittaker Law, LLC), and J. Robert Linneman and H. Louis Sirkin (Santen & Hughes). One of the defendants had earlier been represented by Jennifer Kinsley, who was elected last year to sit on the Ohio First District Court of Appeals, which heard this case (though of course she wasn't on this panel).
Note that this is the case in which I filed an amicus brief in a challenge to a prior restraint that an earlier judge in the case had entered, and also intervened to oppose the police officer's proceeding pseudonymously and with an affidavit sealed. (Many thanks to Jeffrey M. Nye [Stagnaro, Saba & Patterson], who was pro bono local counsel on the amicus brief, and who represented me as to pseudonymity and sealing.)
