The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Injunction Ordering Citizens Not to Mention Coroner in Online Posts (and Barring Them From Possessing Weapons)

An Ohio trial court issued the injunction, but the Ohio Court of Appeals has just set it aside.


From Ohio Court of Appeals Judge Robert Hendrickson's opinion Monday in Ehlers v. Thomas, joined by Judges Stephen Powell and Matthew Byrne:

Ehlers is the director of the Montgomery County Coroner's Office ("MCCO"). In August of 2022, Appellants made public records requests to the MCCO regarding the deaths of, among other individuals, Casey Pitzer and Marvin Napier. Appellants believe those deaths were part of a coverup by the MCCO and other government entities. Pitzer and Napier were autopsied at the MCCO.

Appellants largely communicated with Ehlers via her work email. Over time, the emails sent to Ehlers grew more numerous and confrontational. Some emails contained threats of criminal charges, "legal war," and internet smear campaigns if the records Appellants desired were not turned over to them. However, one email from Petry also contained autopsy photos as well as pictures of Ehlers' family taken from social media. The email asked, "[W]hat if it was your daughter?" The email continued:

If we don't get the records immediately. I'm [sic] putting you and every photo I can find of you all over the internet as one of the MURDER COVER UP doctors * * * Your family will be crushed and embarrassed. * * *

It's not going to be right of you to allow your family to be put out there like that. But the fact is, the more you ignore us, the angrier we get. As any parent would. I hope to hear from you by the end of the day. If not, I'll start sending you the TRUE internet posts I create about you. * * *

Thomas, in turn, stated in one email that because of the alleged actions of Ehlers and others, the entire world, "WILL KNOW WHY PEOPLE BURN OUR FYCKING [sic] CITIES AND HAVE NO RESPECT FOR LAW ENFORCEMENT!! THEY'RE LIARS AND AID IN MURDERS." At one point, Thomas attempted to "friend" Ehlers on Facebook and sent her a message which stated, "I see you're a hometown Clinton County Resident!! * * * this could be good or bad. I hope good, I really do, FYI my friend is employed by NCIS. I served with him in the Marines. We will catch Casey's killer!!" The above are just some of the many communications that Appellants sent to Ehlers.

On February 24, 2023, Appellants personally went to the MCCO in an attempt to receive records. Ehlers was not there that day. Appellants' interaction with other workers at the MCCO became very contentious, but non-violent. Appellants were eventually escorted from the MCCO by Dayton Police. The magistrate's decision granting the CSPO, discussed further below, stated it gave little weight to this incident.

Ehlers later filed for a CSPO against Appellants and was granted an ex parte CSPO the same day. A hearing was later held. Ehlers was represented by counsel, and Appellants appeared pro se.

The magistrate found that Appellants "knowingly engaged in a pattern of conduct that caused [Ehlers] to believe that [Appellants would] cause physical harm or cause or [have caused] mental distress" and issued a CSPO. The CSPO ordered that Appellants "shall not make any additional posts online which specifically name petitioner," and it also prohibited Appellants from possessing any deadly weapons, including firearms. The term of the CSPO is five years.

The court concluded—correctly, I think—that the CSPO violated the First Amendment, citing Bey v. Rasawehr (Ohio 2020) (a case in which I had the pleasure of arguing on behalf of amici):

[T]he CSPO's order that Appellants delete and not post any social media videos and posts which "specifically name" Ehler "necessarily concerns the subject matter of the speech [and] 'cannot be justified without reference to the content of the prohibited communication.'" Stated differently, the restriction "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 …" …

[T]he trial court in this case did not determine whether Appellant's speech fell into one of the categories of speech capable of being restricted before ordering a prior restraint on Appellants' speech. Even if it had, the CSPO's blanket prohibition on using Ehler's name is not the least restrictive means by which to protect Ehlers. We will assume for the sake of argument … that "protecting civil-stalking victims from fear of imminent physical harm or mental distress" is a compelling state interest…. [But] the restriction … prevents use of Ehler's name in all contexts, including, presumably, the only reason Appellants would talk about Ehlers at all—in connection with the underlying facts of this case. Therefore, we find these restrictions demonstrably overbroad.

Ehlers argues the order is "tailored only to protect [her] and her family," but the CSPO provides no protection to Ehlers (or her family by indirect extension) outside of not being directly named in any of Appellants' posts, regardless of the subject. We see no compelling state interest in providing Ehlers, a public official, with such anonymity. While public officials are still entitled to the protection of the law, they may always be the subject of direct comment and criticism…. [W]hile the "CSPOs issued here undoubtedly sought to provide some measure of relief to [Ehlers] for the mental distress [she and her family] experienced because of [Appellant's] public accusations … the means chosen to provide that relief … went far beyond anything that the factual record before us can sustain and the First Amendment can tolerate." …

And the court vacated the weapons restriction:

[A] weapon restriction that "lacks a sufficient nexus with the conduct the trial court was attempting to prevent …" is an unconstitutional restraint on an individual's Second Amendment right to bear arms. Similarly, our sister courts found weapons restrictions in a CSPO to be inappropriate "where no evidence is presented that the respondent used or threatened to use a deadly weapon to harm the petitioner."

In this case, Appellants' communications with Ehlers are certainly troubling in several respects: (1) juxtaposing gruesome autopsy photos with photos of Ehler's family and asking "[W]hat if it was your daughter?"; (2) threatening to "expose" Ehlers and her family over the internet to be "crushed" and "put out there like that" for the entire world to see and grow angry with; (3) asserting alleged actions like Ehlers' are why people "burn our fycking [sic] cities and have no respect for law enforcement!!"; and (4) tracking down Ehlers' personal Facebook page, attempting to friend her, commenting on where she lived, and asserting that Thomas and his friend with the NCIS, both former marines, would catch Casey Pitzer's alleged killer.

However, …. [w]hile the trial court's prohibition of deadly weapons likely sought to prevent any deadly escalation of this antagonistic conflict, it is clear the restriction does not have a sufficient nexus to Appellants' conduct because there is no evidence that Appellants used or threatened to use a firearm to harm Ehlers or anyone else involved in this case.

I'm not sure the line the court supplies is quite right: For instance, I'm not sure whether the line should turn on whether the defendant had used a deadly weapon, as opposed to having used deadly or otherwise serious force. But in general, I agree that there must be some substantial showing of dangerousness before a civil restraining order can constitutionally ban gun possession.

Matt Miller (Barron, Peck, Bennie & Schlemmer, Co., LPA) represented appellants.