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

“So, in this case the judge could say you (Jeffrey Rasawehr) can’t contact the petitioner, but any other restriction would have to be found to be libelous first?”

Justice DeWine, to counsel for Jeffrey Rasawehr

“Who determines that the quality of the statement is something that can be suppressed under the Constitution?”

Chief Justice O’Connor, to counsel for Joni Bey and Becky Rasawehr

On February 11, 2020 the Supreme Court of Ohio heard 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, “Petitioners” or “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 this 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.

The trial 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, the trial court granted the petitions. Specifically, in paragraph 9 of the order of protection, 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, 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. Otherwise prohibited criminal conduct does not become protected by the First Amendment just because it is spoken or written down and 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.

The dissenting judge agreed there was no ambiguity in the second sentence of the protection order, but he dissented as to the first sentence, finding it unenforceable. The dissent reasoned that directing Rasawehr to refrain from posting “about” and to remove any posts “about” Joni and Becky was an ambiguous order.

Read the oral argument preview of the case here.

Rasawehr’s Proposition of Law Accepted for Review

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

Key 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. 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.”)

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.”)

Additional Authority Relied on During Argument

Garrison v. Louisiana, 379 U.S. 64 (1964) (“[E]ven where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood.”)

Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970) (Upholding a statute that allowed a person to require mailers to remove the person’s name from its mailing list and stop all future mailings to the person’s home and finding that a vendor does not have a constitutional right to send unwanted material into the home of another.)

Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (Finding that “so long as the means are peaceful, [ ]communication need not meet standards of acceptability” and striking down an injunction that prevented a community organization from passing out literature critical of a local real estate broker’s practices.)

United States v. Stevens, 559 U.S. 460 (2010) (“[W]hen we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis.”)

State ex rel. Toledo Blade Co. v. Henry Cty. Ct. of Common Pleas, 2010-Ohio-1533 (2010) (“Although prior restraints are not unconstitutional per se, there is a heavy presumption against their constitutional validity.”)

People v. Relerford, 104 N.E.3d 341 (2017) (Ill. 2017) (Striking down Illinois’ stalking statute and finding that the speech integral to criminal conduct exception did not apply because that exception only applies when speech is a “mechanism or instrumentality in the commission of a separate unlawful act.”)

Stark v. Stark, No. W2019-00650-COA-R3-CV (Tenn.App. 2019) (Appealing a trial court contempt order stemming from a woman’s refusal to obey a court order to take down a Facebook post alleging that her ex-husband, a police officer, had abused her. The Tennessee Court of Appeals dismissed the appeal as improperly perfected.)

At Oral Argument

Arguing Counsel

Dennis E. Sawan, Sawan & Sawan LLC, Toldeo, for Appellant Jeffrey Rasawehr

Professor Eugene Volokh, Scott & Cyan Banister First Amendment Clinic UCLA School of Law, for Amici in support of Appellant Jeffrey Rasawehr

Ryan K. Miltner, Miltner Reed LLC, New Knoxville, for Appellees Joni Bey and Rebecca Rasawehr

Alexandria M. Ruden, The Legal Aid Society of Cleveland, for Amici in Support of Appellees Joni Bey and Rebecca Rasawehr

Rasawehr’s Argument

Prior restraints on expression come with a heavy presumption against their constitutionality. So, the appellees in this case have a heavy burden to justify the restraining order in this case, which they have not and cannot meet.

The trial court’s order contains 3 separate injunctions. First, it orders Mr. Rasawehr to remove from current publication any posting that “relates to the petitioners.” Second, it requires that he refrain from posting any statements about the Appellees on any social media service, website, discussion board or similar outlet or service. Third, the order requires that Mr. Rasawehr refrain from posting about the deaths of the Appellees’ husbands in a manner that expresses, implies or suggests that the Appellees are culpable in those deaths. This injunction is breathtakingly broad, and its infirmity should be obvious simply from its description.

As this Court has suggested in its O’Brien decision, only if something is found to be judicially libelous or defamatory can the republication of the same statement be prohibited. And Article I Section 11 of the Ohio Constitution says that in criminal cases for libel both a jury and a determination of falsity are necessary. The problem here is that a civil process is superimposed over a criminal statute which creates a conflict between a person’s constitutional rights and the process which played out here. In this case, if Mr. Rasawehr violates the order in this case, he would be subject to criminal sanctions without the protections provided to him under the Ohio Constitution. While the judge could order him not to make statements directly to the Appellees, that is very different from banning him from making statements about them to the public at large.  

There has been much ado about this leaving domestic violence victims without any recourse.  But whether you believe them or not, the underlying allegations that were silenced here were allegations of the most heinous domestic violence, that somebody committed a murder against their family members. Let’s say a woman gets out of a relationship and wants to talk about her ex as having abused her. The same logic that got to this injunction would silence that woman from posting on Facebook about this relationship and would re-victimize her. This has deep roots and is a slippery slope. This injunction should be vacated. 

Argument of Amici in Support of Rasawehr

The U.S. Supreme Court has said that even though statements that are found libelous could lead to civil or even to criminal libel liability, there cannot be liability simply on the theory that some statements are ill-motivated, which was the rationale of the court below which amici are asking this Court to reverse.

The U.S. Supreme Court has also said that there is no vendetta-speech or ill-motivated-speech exception. When people accuse each other of misconduct, complicity in violence, corruption, or sexual abuse, the remedy the law provides is a libel lawsuit. Libel lawsuits are the proper remedy. This Court recognized that in O’Brien.

If the Appellees believe that the statements about them are false, the remedy is for them to file a libel lawsuit, with its right to a jury trial. If there is a determination by a jury that specific speech is defamatory, then an injunction against continued publication of speech expressing substantially the same facts may be proper. Under this Court’s decision in O’Brien, a judicial determination that specific speech is defamatory must be made prior to any restraint. It is not good enough for the judge to make such a finding in this case. The Ohio Constitution provides that in a criminal libel case the jury must be the factfinder. An injunction is backed by the threat of criminal punishment. Criminal contempt for violating an anti-libel injunction is effectively criminal libel, which requires there to be jury finding.

If speech is to be suppressed on the theory that it is false, that’s a determination that should not be made by just one government official. The Columbus Dispatch newspaper for example, has no greater or lesser rights under the First Amendment than Mr. Rasawehr does. If a single judge could issue an injunction ordering someone to stop making accusations, then the judge could issue an injunction ordering a newspaper to stop making those accusations. That is wrong. It’s also inconsistent with the First Amendment, which has long been understood as embodying this American tradition of jury trial decision making rather than judicial decision making.

It is the position of the Amici that nothing in paragraph 9 of the judge’s order can stand. While Amici agree that the government can say stop talking to a person, the government cannot say stop talking about a person.

Joni Bey and Becky Rasawehr’s Argument

The proposition of law before the Court today has already been addressed in Toldeo Blade v. Hamilton County Court of Common Pleas where this Court stated that prior restraints are not unconstitutional per se.  The question then becomes when are prior restraints permitted? They are permitted where the speech that is restrained is categorically unprotected speech including speech integral to illegal conduct. Here, the process to determine that is through Ohio’s menacing by stalking statute.  There must be a full civil hearing before the court of common pleas, which occurred in this case. The court takes testimony and evidence and finds there is a pattern of conduct. In this case that included written communication, which the General Assembly acknowledged could be part of the pattern of conduct. The written communication does not have to be directed to a specific person.  The law does not require that. Nor does the Ohio statute require a finding of actual mental distress.  But this is not a situation where there’s simple harassment or annoyance.  This is a case in which there is actual mental distress.

Under Ohio’s menacing by stalking statute, the statements made by a person engaging in menacing by stalking may be true or false. But the truth or falsity is irrelevant. The effect on the victim is exactly the same. In this case the statements were false, but a finding of falsity is not required. It is the procedural due process protections provided by the statute that are our safeguards.

There is an important mens rea element in the Ohio menacing by stalking statute. The perpetrator must engage in a pattern of conduct where he knowingly intends to cause mental distress to the victim. Appellees believe our Constitution stopped short of allowing people intentionally to cause anxiety and mental health problems to others. And the internet and social media have given a new avenue for stalkers to harass and menace their victims.  

The Court needs to understand the entire context of this particular case. Appellees realize there is a much larger global principle involved here. But the trial court was looking at this situation in the context of a small town, where there was actual testimony of serious mental distress, of Appellees saying they couldn’t go out to the store without people saying something to them. They have to drive by a billboard every day directing the entire public to look at these very private matters. And while the internet has opened all this up in a way that wasn’t present in the 1960’s, the legal principles and framework of Giboney and speech-integral-to-illegal conduct applies perfectly here today. The federal circuit cases apply that framework.

The statute in this case is not aimed at speech. It’s aimed at a pattern of conduct which causes the victim to experience actual mental harm. The purpose of Ohio’s Menacing by Stalking statute is forbidding conduct which causes harm, mental distress. Appellees recognize that speech and conduct are intertwined.  Sexual harassment, for example, is pure speech and it fits within the speech-integral-to-illegal-conduct framework.  The classic statement “have sex with me or you’re going to lose your job” is pure speech.

In order to get a restraining order, there must be a petition to the court, a hearing, evidence, and proof of actual mental distress. The number of postings, the reach of the speech, the effect on the victims and the specific intent of the perpetrator to cause that harm are all factors for the trial court to decide.

Defamation claims seek to restore a person’s reputation and provide monetary damages.  The Menacing by Stalking statute seeks to prevent further harm to the victims and protect against future conduct. While there may be overlap, they are absolutely separate remedies which address different harms, not to mention the time and expense involved in a defamation suit. The legislature wanted to provide expeditious relief to stalking victims.

Argument of Amici in Support of Appellees

The relevant question here should be whether this online posting ban is a legal safeguard against further stalking behavior. Amici submit that it is. Protection orders are designed to bring about a cessation of violence and ensure the safety and protection of victims. Each protection order is designed to restrain future harm because of past conduct that a court has already found to be unlawful.

Mr. Rasawehr is asking the Court to eliminate the valid restraints protecting Joni Bey and Becky Rasawehr from his harassing and threatening conduct.  The consequence of not restricting this behavior is to put Joni and Becky in a no-win situation. They will either have to continue being harassed, or they will have to self-censor and silence themselves. And while there are other civil and criminal remedies in addition to a civil stalking protection order, filing a defamation action addresses damage after it is done but doesn’t restrain future conduct. And the goal in a defamation suit is monetary damages.

There were three things Becky and Joni found very problematic. here. One was Jeffrey Rasawehr’s posting that “Becky must die.” Second, he said something about “designed to exact revenge,” and then third was his call to action, which can be interpreted to mean he wanted everyone else in the community to begin to harass them.  What may have started out as speech becomes conduct when, as in this case, it is persistent, unwanted, and unwarranted.  What these women wanted was for the harassing behavior to stop. This is a balancing act between the free speech of Mr. Rasawehr to post whatever he wants in whatever medium he wants to post, against his victims’ rights not to be intruded into, not to have his speech or his conduct intrude into their lives.

What Was On Their Minds

Speech Integral to Conduct

I’m having trouble with this speech integral to conduct and how that works, commented Justice DeWine.  So, the government wants to pass a law that says no one shall do anything that shall bring into disrepute the President of the  United States. Speech would seem to be integral to that, so would that be an exception to the First Amendment? Isn’t the statute here aimed at least partly at speech? Is conduct even necessary? Could it be all speech? Is conduct speech?

Doesn’t the written communication have to be directed to someone, the intended person or victim, asked Justice Stewart? Is there a difference between violating a no-contact order by trying to access, send a letter, or make a phone call, and posting it somewhere where it can be accessed or not accessed?

First Amendment Protections and Boundaries

Is it Mr. Rasawehr’s position that the Constitution protects a free-for-all of allegations, slinging allegations of heinous crimes, or misconduct, across all social media spectrums and there are just no limits, asked Justice Stewart? No protections for allegations unless they are proven libelous?

What if I want to cause mental distress to someone because I think they did something in the political sphere that’s really wrong, asked Justice DeWine?  And I want them to understand how American citizens feel about that.  Isn’t that kind of the heart of our Constitutional protections? Can speech be forbidden if we had the right purpose?

Does Truth or Falsity Matter?

Isn’t it really disturbing for a First Amendment context, that for example, someone can go out and murder someone and a person couldn’t tell the truth about that because it might cause distress, asked Justice DeWine? How do I know in this case if what Mr. Rasawehr is saying is true or not? If what he said was true, could we ban him from saying it? Did the trial court ever find that what Mr. Rasawehr said wasn’t true?

Defamation Suit

What about filing a libel suit here, asked Chief Justice O’Connor? If the language is found to be defamatory, couldn’t the order of the court in such a case be refrain, or you are in contempt of court?

The Injunction in this Case

What kind of an injunction would be ok, asked Justice DeWine? Could the judge bar Mr. Rasawehr from making the statements directly to the petitioners? Are there any limits on that? So, in this case the judge could say you can’t contact the petitioners, but any other restriction would have to be found to be libelous first? In this case, for example, couldn’t the judge hold a hearing, take evidence, make findings of fact, find that certain speech is defamatory, and say you cannot say that again?

Does anything that was contained in the 3 prongs of the judicial order pass muster, asked Chief Justice O’Connor? If a person were found liable for libelous statements through a civil action, can there then be orders similar to what is contained in this judge’s orders? Does this process take the place of having to have a civil proceeding to declare this libelous and the resulting damages? Was Mr. Rasawehr present at this hearing? Was he represented?(yes) Did he have the chance to testify? (yes) Did he? (no, he invoked his Fifth Amendment rights).

Looking at the first sentence of  paragraph nine of the judge’s order, could the respondent go online and on Facebook and say, dear daughter, today’s your birthday, I miss you, I love you, please call me, asked Justice Fischer? That’s not a very harmful statement, is it? How about please forgive me?

Content of Rasawehr’s Message

Was there a threat of violence in this case, asked Justice French? Was part of the message that somebody should die?

Can you see how this message would be distressful, Chief Justice O’Connor asked Rasawehr’s lawyer (he could), adding she was sure she would take it that way and would be surprised if he didn’t.

Hypotheticals

I couldn’t follow Donald Trump around and say he is doing horrible things if that would cause him severe emotional distress, asked Justice DeWine?

What if a man had been posting his undying love repeatedly for one of these women, and at every opportunity he’s saying flattering things about them excessively, but that was unwanted, asked Chief Justice O’Connor? It causes the person mental distress—she is looking over her shoulder to see if this suitor is going to show up at work, going to be at her doorstep or if there are going to be flowers—it’s all positive, in some people’s minds. Is that a problem?

Ohio’s Menacing by Stalking Statute

Does the menacing by stalking statute make an exception for public figures, asked Justice DeWine?

is there a qualifier, some number, or measurement that has to be utilized here, asked Chief Justice O’Connor? For example, if he posted 5 times, is that different than if he posts 50 times? Is the stalking enhanced because there’s more of a forum or an audience online? Is it one posting and 5000 people read it and embrace it or is it 5000 postings and only one person sees it? Two? What are we talking about here?

Can the General Assembly violate the Constitution, asked Justice French, presumably rhetorically. Regardless of legislative intent, doesn’t the Court still have to look at whether the statute is constitutional or not?

The Internet Era

Has the use of technology and social media today changed the law with regard to First Amendment rights, asked Justice Stewart?  Is there a way to protect people from menacing by stalking and harassment and still afford people their First Amendment right to freedom of expression?

Who is the Decider Here

Could a judge make the finding that what was said was libelous or defamatory, asked Justice DeWine?

What process is there to determine the nature of the speech we are talking about, and who determines what the nature of that speech is, asked Chief Justice O’Connor? Who determines that the quality of the statement is something that can be suppressed under the Constitution?

How it Looks From the Bleachers

To Professor Emerita Marianna Bettman

Whew! Intense! The oral argument was very curious in that it didn’t seem to me that any of the justices appeared concerned or upset about Rashawehr’s conduct until the lawyer for the amici in support of the two women, the last to argue before the rebuttal, seemed to remind them of it, and then some outrage over that part of this case kicked it. Suddenly, then, the Chief in particular began to ask a sharp series of questions about how disturbing Rasawehr’s behavior was.

Regardless of the wording of Rasawehr’s proposition of law accepted for review, the argument by Rasawehr and his amici sounded like a full-throated constitutional challenge to Ohio’s Menacing by Stalking statute, at least as applied. And the line of argument about needing to get a judgment in a tort defamation action before this speech could be lawfully restrained caused me some head-scratching. Those cases take forever, are expensive, and are notoriously difficult for plaintiffs to win in this country.  They certainly aren’t of-the-moment practical for stopping harassing behavior. I don’t think the court will agree that winning a civil (since there are no more criminal) libel suit is a condition precedent to restraining the speech involved here.

When all is said and done, though, I think the Court will agree with Rasawehr that paragraph 9 of the injunction (quoted here in the case background section) was overly broad, finding that it does in part improperly impinge on protected speech. Which is of course exceptionally difficult in this context, and is the heart of it all. I think the Court will require a narrowing of the order that was issued but will not vacate it outright, maybe with the prohibition limited to speech to, not about the petitioners. This one will be a real challenge.

To Student Contributor Ivy Charneski

Initially I found Rasawehr’s argument very persuasive here and I think the Justices may have also found it persuasive as there were relatively few questions from the bench. The Justices also did not push any of the issues in their questions too hard and seemed satisfied with the answers that Rasawehr’s counsel and amici counsel Professor Volokh articulately gave. In contrast, the Justices did not let Bey’s counsel skate by so easily. I think the Justices seemed unsettled by the idea that someone’s mental distress could serve as the basis to completely silence another’s potentially true speech. Yet Bey’s counsel could not offer much in the way of easing this discomfort.

But that being said, I think the Court still recognizes the need to reign in speech like Rasawehr’s that may be causing someone serious harm. This is a tough case and I think the Justices will struggle to draw some kind of line between these two principles of protection from harm and harassment and protection of First Amendment rights. There does not seem to be an easy answer here and I’m really not sure how this one will come out.