Update: On June 16, 2020 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On February 11, 2020 the Supreme Court of Ohio will hear oral argument in the case of Joni Bey, et al. v. Jeffrey Rasawehr, 2019-0295. At issue in the case is whether prior restraints on the exercise of free speech in the context of a civil stalking protection order are unconstitutional and presumptively invalid.

Case Background

In November 2017, Joni Bey (“Joni”) and her mother, Rebecca Rasawehr (“Becky”) (Collectively, “Appellees”) filed petitions seeking civil stalking protection orders (“CSPO”) against Jeffrey Rasawehr (“Rasawehr”). Rasawehr is Becky’s son and Joni’s brother. Joni and Becky claimed that Rasawehr frequently posted about them on various websites and social media outlets. Joni and Becky claimed that Rasawehr’s posts accused them of killing their husbands and working with county officials to cover it up. Joni also claimed that Rasawehr sponsored a billboard in their town directing people to his online posts. Joni claimed that Rasawehr hired a private investigator who questioned her under false pretenses and that Rasawehr made false reports to Child Services that her son was endangered and malnourished.

Mercer County Common Pleas Court Judge Jeffrey Ingraham held a hearing on the CSPO petitions at which Joni and Becky both testified. Both women explained how Jeffrey’s online harassment has caused them to experience mental anguish, fear, and embarrassment. Thus, they requested protection orders from the trial court directing Rasawehr to refrain from posting about them online. The court reviewed evidence relating to the allegations including editorials from the Lima News website, craigslist posts, and various posts from a conspiracy website all allegedly authored by Rasawehr.

In January 2018, Judge Ingraham granted the petitions. Specifically, the court ordered Rasawehr to refrain “from posting about Petitioners on any social media service, website, discussion board, or similar outlet or service and shall remove all such postings from CountyCoverUp.com that relate to Petitioners.” The court also ordered Rasawehr to “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.” Rasawehr appealed the trial court’s order alleging it violated his First Amendment free speech rights.

The Appeal

In a split decision authored by Judge Shaw, the Third District Court of Appeals affirmed the trial court’s order. First, the court noted that several Ohio appellate districts have addressed First Amendment constitutional challenges to the menacing by stalking statute and have found such arguments to be meritless.

The Third District then explained that freedom of speech is not absolute, that not all speech is equally protected, and that some categories of speech are wholly unprotected. The Third District explained that otherwise prohibited criminal conduct does not become protected by the First Amendment just because it is spoken or written down and that the menacing by stalking statute criminalizes certain conduct directed toward another person when done for an illegitimate purpose. Thus, the Third District held that Rasawehr’s conduct was done for the illegitimate purposes proscribed by R.C. 2903.211 and therefore was not protected by the First Amendment. Finally, the Third District held that the trial court’s protection order was not unconstitutionally vague or ambiguous.

Judge Zimmerman concurred in part and dissented in part. While Judge Zimmerman agreed that there was no ambiguity in the second sentence of the protection order, he dissented as to the first sentence, finding it unenforceable. Specifically, Judge Zimmerman reasoned that directing Rasawehr to refrain from posting “about” and remove any posts “about” Joni and Becky was an ambiguous order.

Votes to Accept the Case

Yes: Justices French, Fischer, DeWine, and Donnelly*

No: Chief Justice O’Connor, Justices Kennedy and Stewart

*Justices French, DeWine, and Donnelly would accept the appeal on both propositions of law.

Rasawehr’s Proposition of Law Accepted for Review

Prior restraints on the exercise of freedom of speech are unconstitutional and presumptively invalid.

Rasawehr’s Proposition of Law Not Accepted for Review

An injunction on speech is only permissible when that “speech has judicially been found libelous,” and is limited to the extent that the injunction restricts “continued publication of the same”. O’Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

Key Statutes and Precedent

U.S. Constitution, Amendment I (“Congress shall make no law . . . abridging the freedom of speech or of the press; . . .”)

Ohio Constitution Article I, Section 11 (“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. . . .”)

R.C. 2903.214 (Civil Stalking Protection Order Statute)(A person may petition the court for relief alleging that another person is violating the menacing by stalking statute and requesting a protection order against that person.)

R.C. 2903.211 (Menacing By Stalking)( “No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person.”)

Near v. Minnesota, 283 U.S. 697 (1931) ( “[E]very man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, person, property, or reputation[.]”)

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (“[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”)

United States v. O’Brien, 391 U.S. 367 (1968) (“When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”)

O’Brien v. University Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (“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.”)

Rasawehr’s Argument

The trial court’s order is a prior restraint on Rasawehr’s free speech and a prior restraint on the expression of protected speech violates the First Amendment. Judicial orders which forbid expression before it takes place are prior restraints. This is precisely what the trial court’s injunctive order did here. However, injunctions that impose prior restraints on speech and publication have long been disfavored under the law and are wholly unconstitutional under the First Amendment. Therefore, the trial court’s protection order is an unconstitutional violation of Rasawehr’s First Amendment rights.

The court cannot use R.C. 2093.211 to prohibit Rasawehr’s publications before they have even occurred. Furthermore, prior restraints should not be reviewed under an intermediate scrutiny analysis. Rather, the proponent of a prior restraint faces a heavy burden in justifying such an injunction. Before limiting one’s speech, the court first must determine that the speech at issue is not protected. For example, the court should first determine whether the speech is libelous or defamatory. Thus, First Amendment rights can only be restricted after publication; and further, only after the elements of a First Amendment exception are proven.  Therefore, the trial court’s order which restricted Rasawehr’s speech before publication, and without proof of any First Amendment exception was unconstitutional. Just because Rasawehr’s speech was found to be hurtful and aimed at revenge does not mean that it was unprotected First Amendment speech.

Additionally, the “speech integral to criminal conduct” exception to the First Amendment is inapplicable. This is because the speech integral to crime exception does not posit that the speech itself can be the crime.  Rather, the word “integral” suggests that the speech must be substantially enough connected to some other crime for the speech to be potentially punishable.

Additionally, some laws, like R.C. 2903.211, even if facially content neutral are considered content based because they require reference to the content of the regulated speech. Thus, even if R.C. 2903.211 is a valid facially neutral conduct restriction, it cannot be freely applied to speech based on what the speech says. A foundational principle of the First Amendment is that the government cannot restrict speech based on its content. Here, though R.C. 2903.211 is facially neutral, it should be interpreted as content based because determining whether certain speech causes mental distress necessarily requires an evaluation of its content.

Finally, it makes no difference that the internet is involved here.  Changes in technology must not affect basic First Amendment constitutional principles.

Appellees’ Argument

Appellees agree that there is a heavy burden of presumption against prior restraints. However, they are not unconstitutional per se. Certain speech and expressive conduct are not entitled to First Amendment protection. Here, Rasawehr’s First Amendment constitutional rights have not been violated because the protection orders only restrict unprotected speech. Thus, no balancing or level of scrutiny is required. However, even if Rasawehr’s speech at issue is protected, when reviewed under a strict or immediate scrutiny analysis the protection orders are constitutional because they further the state’s compelling interest in protecting victims of menacing by stalking.

First, Rasawehr’s speech is unprotected because it is speech integral to criminal conduct and such speech is categorically unprotected by the First Amendment. Here, Rasawehr’s speech is integral to criminal conduct because it is part of his knowing, coherent pattern of conduct engaged in for the sole purpose of violating R.C. 2903.211. Therefore, because Rasawehr’s speech is integral to criminal conduct, it is not protected by the First Amendment and thus his constitutional arguments must fail.

Furthermore, the Court should reject Rasawehr’s arguments because other courts considering the intersection of the First Amendment and protection orders recognize the applicability of the speech integral to illegal conduct exception. For example, federal courts have consistently found that speech that violates the federal stalking statute is categorically unprotected as speech integral to illegal conduct. Therefore, considering that Ohio’s menacing by stalking statute is similar to the federal stalking statute, the Court should conform Ohio’s jurisprudence to that of the federal courts of appeals and affirm that the Protection Orders enjoin categorically unprotected speech.

In any event, even if Rasawehr’s speech can be classified as protected speech, it is still constitutionally permissible to restrict it under either the First Amendment’s strict scrutiny balancing test or an immediate scrutiny analysis. Here under a strict scrutiny analysis, the required compelling state interest is the protection of its citizens and the prevention of mental distress and physical harm. Second, the orders are narrowly tailored to advance this compelling interest as there is no less restrictive alternative to the protection orders that would be at least as effective in protecting Joni and Becky and preventing Rasawehr’s abuse. Finally, the value of Rasawehr’s speech is quite low as it pertains to matters of private, rather than public concern. Thus, the protection orders survive a strict scrutiny analysis. Additionally, they also survive an immediate scrutiny analysis.

Amici in Support of Rasawehr

Block Communications, Inc. filed a brief in support of Rasawehr. Block Communications is a family-owned multi-media company that owns and operates several newspapers and television stations in Northern Ohio. Block Communications’ interest in the case is to highlight the foundational principles of free speech and free press that are jeopardized by the lower court opinion. Block argues the lower court’s decision should be reversed because there was no adequate hearing to determine whether Rasawehr’s speech is unprotected in the first place.  Thus, the court’s order is an unconstitutional prior restraint on Rasawehr’s protected speech.

Block Communications’ Proposed Proposition of Law

The First Amendment to the United States Constitution and Article I, Section 11 of the Ohio Constitution prohibit prior restraints on speech in the absence of an adequate judicial determination, made before the restraint is issued, that each of the specific statements to be enjoined is not constitutionally protected. (State ex Rel. Toledo Blade Co v. Henry Cty. Court of Common Pleas, 125 Ohio St. 3d 149, 2010-Ohio-1533, 926 N.E. 2d 634, and Seven Hills v. Aryan Nations, 76 Ohio St. 3d 304, 1996- Ohio-394, 667 N.E. 2d 942, approved and applied.)

The Electronic Frontier Foundation, the 1851 Center for Constitutional Law, and several law professors filed a joint brief in support of Rasawehr. Electronic Frontier is a non-profit civil liberties organization that works to protect the rights of users to transmit and receive information online. The 1851 Center for Constitutional Law is a nonprofit, nonpartisan law firm dedicated to protecting Ohioans’ constitutional rights, including their freedom of speech. These amici will be referred to collectively as Electronic Frontier. Electronic Frontier argues the lower court’s decision should be reversed because the court’s order serves as an injunction barring all online speech about a person and is thus a prior restraint in violation of the First Amendment. Electronic Frontier further argues that speech cannot be retrained merely because it is thought to have an “illegitimate reason,” and that before any prior restraint is permissible, there must be a judicial determination that the particular speech is defamatory.

Professor Eugene Volokh of the UCLA School of Law, one of the law professors who signed onto the Electronic Frontier amicus brief, is appearing pro hac vice and has been granted permission to share oral argument time with Rasawehr in the case.

Amicus in Support of Appellees

The Legal Aid Society of Cleveland and the Ohio Domestic Violence Network filed a joint brief in support of Appellees. The Legal Aid Society of Cleveland is an organization that assists clients in addressing important legal issues. The Ohio Domestic Violence Network provides direct legal services to survivors and their families. These amici’s interest in the case stems from their concerns for victims of stalking and domestic violence. Amici argue the lower court’s decision should be affirmed because the trial court’s order is a constitutional, narrowly tailored restraint designed to serve the significant government interest of protecting Joni and Becky from future harassment.

The amici in support of appellees have been granted permission to share oral argument time with the appellees.

Student Contributor: Ivy Charneski