“…[T]he potential abuse of speech rights in the future cannot justify the blanket prohibition imposed here on Rasawehr’s speech before it has even been uttered.”

Justice Donnelly, opinion of the Court

On June 16, 2020, the  Supreme Court of Ohio handed down a merit decision in Bey v. Rasawehr, 2020-Ohio-3301. In a unanimous opinion written by Justice Donnelly, the Court struck down the portion of the civil stalking protection orders that enjoined future postings about the women who sought the orders as an unconstitutional prior restraint on protected speech in violation of the First Amendment of the U.S. Constitution. The case was argued February 11, 2020.

Case Background

In November of 2015, about seven months after appellee Joni Bey’s husband died, Joni’s brother, appellant Jeffrey Rasawehr, purportedly began writing and posting public comments on craigslist and the Lima newspaper website accusing Bey of having something to do with her husband’s death and accusing local officials of not investigating the circumstances of his death. The barrage of public accusations continued, including messaging on a billboard near Bey’s house and internet postings authored by Rasawehr at CountyCoverUp.com. In June of 2016, Rasawehr’s mother, appellee Rebecca Rasawehr, began receiving similar treatment over the death of her husband (Jeffrey’s father) in 2008.

In November of 2017, Joni Bey and Rebecca Rasawehr (collectively, “appellees”) each filed a petition for a civil stalking protection order (“CSPO”) against Rasawehr, each testifying to the mental distress caused by Rasawehr’s postings.

In January of 2018, the trial court granted the appellees’ petitions and issued CSPOs prohibiting Rasawehr from having any direct or indirect contact with them, from coming within 500 feet of them, or from entering certain protected locations. Also included, and the essence of the challenge in this case, is paragraph nine of the order, which reads as follows:

“IT IS FURTHER ORDERED: RESPONDENT SHALL 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. Respondent shall 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.”

This order was to remain in effect until January 15, 2023. Rasawehr appealed.

The Third District Court of Appeals affirmed the trial court’s judgment in both cases, finding that the evidence supported the trial court’s finding that appellees had satisfied their burden that the CSPOs against Rasawehr were warranted. One member of the panel dissented as to paragraph nine, finding that provision ambiguous and unenforceable.

Read the oral argument preview here and the analysis here.

Key Precedent

U.S. Constitution, Amendment I (“Congress shall make no law . . . abridging the freedom 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.”)

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (Prior to any restraint there must be a judicial determination that specific speech is defamatory.)

Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376 (1973) (“The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that is unprotected by the First Amendment.”)

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.”)

United States v. Stevens, 559 U.S. 460 (2010) (The First Amendment “permits restrictions upon the content of speech in a few limited areas.”)

Snyder v. Phelps, 562 U.S. 443 (2011) (Antimilitary and homophobic statements near funeral for serviceman killed in action was protected despite jury’s finding that it was “outrageous” as an element of intentional infliction of emotional distress.)

United States v. Alvarez, 567 U.S. 709 (2012) (The First Amendment permits content-based restrictions on limited areas, including “advocacy intended, and likely, to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called fighting words; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent.”)

Reed v. Town of Gilbert, ___U.S. ___, 135 S.Ct. 2218 (2015) (Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Content-based regulation is presumptively unconstitutional and subject to strict scrutiny.)

Flood v. Wilk, 125 N.E.3d 1114 (Il. App. Ct. 1st Dist. 2019) (An injunction that prohibits a person from writing anything about a person or group of people would not survive strict scrutiny.)

Rasawehr’s Proposition of Law Accepted for Review

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

Does the Court Adopt Rasawehr’s Proposition of Law?

Yes, explicitly at paragraph 60 of the opinion.  But in addition to this generalization, the Court finds paragraph 9 of the CSPO to be such an unconstitutional prior restraint.

Merit Decision

Analysis

CSPOs in Ohio

The opinion begins by reviewing R.C.2903.211, Ohio’s menacing by stalking statute. Anyone who violates a CSPO can be subject to criminal prosecution or contempt of court. These remedies are in addition to any other available civil or criminal remedies. The point of a CSPO is to intervene before a victim is harmed by a stalker.

Finding in this Case

The trial court found Rasawehr violated R.C 2903.211 (A) and issued a CSPO to each of the appellees.

What Rashawehr Does and Doesn’t Contest

Rasawehr does not contest the trial court’s decision to issue CSPOs. He challenges only the relief ordered in paragraph 9 of the CSPOs arguing that ordering him to refrain from posting in the future on any social media or equivalent about the deaths of the husbands of the appellees is a prior restraint on speech which violates the First Amendment. The Court agrees. Rasawehr also doesn’t contest the part of paragraph 9 that ordered him to remove prior postings from CountyCoverUp.com about the appellees.

Basic First Amendment Principles

Here are some basic First Amendment principles from the Court’s opinion (we are not citing all this case law in the key precedent section. Please refer to the opinion for them).

• The right to free speech is not absolute.
• The regulation of speech that is content-based is presumptively unconstitutional and is subject to strict scrutiny review.
• Content-neutral regulations limiting the time, place and manner of speech are permissible as long as they promote important governmental interests unrelated to the suppression of free speech and do not burden more speech than is necessary to further those interests.
• A prior restraint is not per se unconstitutional but carries a heavy presumption against constitutionality.

The Court notes that like statutes that regulate speech, court-ordered injunctions that regulate speech are also subject to First Amendment scrutiny.

Does Posting in Cyberspace Change the First Amendment Analysis?

No.

Now, onward to the merits.

Application of the First Amendment to Paragraph Nine of the CSPO

Content-Based versus Content-Neutral Restrictions

Government regulation of speech is content-based if a law applies to particular speech because of the topic discussed or the idea or message expressed. The Court concludes that paragraph nine’s prohibition of certain specific future speech is content-based and rejects appellees’ argument that it is content-neutral.

Exception for Speech Integral to Criminal Conduct

Restrictions on the content of speech is permitted in a few limited areas.  Speech integral to criminal conduct is one of these. Appellees argue that Rasawehr’s speech falls into this category because his postings are integral to the crime of menacing by stalking in violation of R.C. 2903.211(A) and is thus unprotected speech.  But the Court rejects this argument because there has not been any judicial determination that future postings Rasawehr might make will be integral to the commission of a crime and thus unprotected speech.

As the Court previously held in O’Brien v. University Community Tenants Union, Inc., future speech can be restrained if it has been judicially determined to be libelous and exactly that same speech is involved. This was a point made repeatedly by Professor Volokh during oral argument.  

“Because of the uncertainty inherent in evaluating future speech that has yet to be expressed, the record here cannot justify a content-based prior restraint on speech when there has been no valid judicial determination that such speech will be integral to criminal conduct, defamatory, or otherwise subject to lawful regulation based on its content,” Donnelly wrote.

The Court also rejected appellees’ reliance on federal court decisions upholding the constitutionality of the federal anti-stalking statute, finding them inapposite because they involved past speech integral to the course of criminal conduct and none involved prior restraints on future speech.

Bottom line here: the CSPOs represent prior restraints that are unconstitutional unless they can withstand strict scrutiny.

Strict Scrutiny Review

A content-based regulation can only withstand strict scrutiny if it is the least restrictive means to achieve a compelling state interest. The Court assumes without deciding that there is a compelling state interest in protecting civil-stalking victims from fear of harm or emotional distress, but finds the means chosen are not the least restrictive. Paragraph nine bars Rasawher from posting anything at all about the appellees. Thus, the Court finds it without any limits and thus overbroad.

“Nothing in the record before us justifies such an utterly sweeping restriction on First Amendment expression,” Donnelly wrote.

The opinion goes on to state that the Court was not discounting the embarrassment and mental distress the appellees have experienced and probably will experience, but reminds us all that “speech does not lose its protected character simply because it may be upsetting and cause distress or embarrassment.”

Other Available Civil Remedies

The appellees could sue Rasawehr for defamation. But a CSPO cannot be used as a substitute for civil remedies or tort law damages.

Hierarchy of First Amendment Speech Importance

The high court agrees with the appeals court in this case that not all speech is of equal First Amendment importance and that speech on matters of public concern are at the top of the list. Where does Rasawehr’s speech land on the hierarchy? Appellees argue Rasawehr’s speech is about private matters and is thus “decidedly low.” The Court doesn’t see it that way, given that some of Rasawehr’s comments allegedly implicate local public officials in an alleged criminal conspiracy. But the Court states that it is not its job to pass judgment on the First Amendment value of Rasawehr’s allegations, or their truth or plausibility. “To the extent that his statements involve matters of both private and public concern, we cannot discount the First Amendment protection afforded to that expression,” Donnelly wrote.

Bottom Line

“Prior restraints on First Amendment expression are presumptively unconstitutional. Because paragraph nine of the CSPOs is content based and does not survive strict scrutiny, we hereby vacate those portions of paragraph nine that enjoin Rasawehr from future postings about appellees or that express, imply, or suggest that appellees were culpable in the deaths of their husbands.”

Case Disposition

The judgment of the court of appeals is reversed to the extent that it upheld the CSPOs enjoining any future postings suggesting or opining that appellees had something to do with the deaths of their husbands. The parts of paragraph nine of the CSPOs prohibiting such future postings is vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion.

Trial Court Judge (Reversed in Part)

Mercer County Common Pleas Court Judge Jeffrey Ingraham 

Third District Panel (Reversed in Part)

Opinion by Judge Stephen Shaw, joined by Judge Vernon Preston

Partial Dissent: Judge William Zimmerman

Concluding Observations

Here’s what I wrote after argument:

“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.”

The Court here pretty much entirely bought Rasawehr’s argument, extremely ably argued by Dennis Sawan, and ably assisted by UCLA Law Professor Eugene Volokh.

Justice Donnelly’s opinion is like an entire Con Law refresher course. He really put a lot into it, reflecting the concerns expressed by all his colleagues during the very intense oral argument.