Update: On April 6, 2022, this appeal was unanimously dismissed as moot.

On November 9, 2021, the Supreme Court of Ohio will hear oral argument in M.R., a Cincinnati Police Officer pleading under a pseudonym v. Julie Niesen and Terhas White and James Noe and Alissa Gilley, 2020- 1131. At issue in this case is whether a trial court’s grant of a temporary restraining order that imposes a prior restraint on speech is a final appealable order subject to immediate appellate review.

Case Background

M.R., a Cincinnati police officer, was providing crowd control at a city open forum following race and policing protests. When asked about the status of a police officer that had left the scene, M.R. made the “okay” symbol by touching his thumb and index finger together. Some individuals in the crowd interpreted the gesture as a symbol of white supremacy used to intimidate the crowd. These accusations of white supremacy and threats to expose M.R.’s identity, known as doxxing, were posted on social media by the defendants. In response, M.R. sued the defendants for defamation, among other causes of action.

Shortly after the lawsuit was filed, M.R. moved the Hamilton County Court of Common Pleas for leave to seal the affidavit and to proceed under a pseudonym. Hamilton County Common Pleas Court Judge Megan Shanahan granted the motion.

Next, M.R. moved the trial court for a temporary restraining order and a preliminary injunction to have the defendants first, remove their social media posts, second, refrain from similar posting in the future, and finally, be enjoined from publishing M.R.’s personal identifying information.

On July 24, 2020, the trial court held a hearing on the TRO issue only. Following oral argument, although the trial court denied M.R.’s request to remove and prohibit further social media posts, the court granted a limited TRO enjoining defendants from publishing M.R.’s personal information. The court set a hearing date on the preliminary injunction for the following week. For various scheduling reasons the trial court continued the case and rescheduled the hearing on the preliminary injunction for September 1.

Before the September 1 hearing, however, Niesen and White appealed the trial court’s grant of the limited TRO enjoining them from posting M.R.’s personal information. Defendants Noe and Gilley are not involved in the appeal. M.R. filed a motion to dismiss the appeal on grounds that the trial court’s entry was not a final appealable order.

The Appeal

In a per curiam opinion, the First District Court of Appeals granted M.R.’s motion to dismiss because the trial court’s grant of a TRO was not a final appealable order subject to appellate review. The three-judge panel was comprised of Judges Beth Myers, Pierre Bergeron, and Candace Crouse.

The court noted that although injunctions are final, appealable orders, TROs are substantively different, and rejected Niesen and White’s argument that the TRO in this case was tantamount to a preliminary injunction. First, TROs are intended to be temporary. Second, the TRO here was only intended to preserve the status quo, that is to protect M.R.’s personal identity, until the preliminary injunction hearing could be held six days later. Finally, the TRO is quite limited—it only restricts the publishing of personal information and does not amount to the removal or suppression of future posts. Niesen and White appealed.

Key Statutes and Precedent

Ohio Constitution, Article IV, Section 3(B)(2) (“Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district [. . .]”)

Ohio Rule of Superintendence 45(E) (“Any party to a judicial action or proceeding or other person who is the subject of information in a case document may, by written motion to the court, request that the court restrict public access to the information or, if necessary, the entire document.” The court shall grant the motion if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest in public policy, risk of injury to persons, individual privacy rights, public safety, and fairness of adjudicatory process.)

Freedman v. Maryland, 380 U.S. 51 (1965) (“because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” The procedure must also “assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous [restraint].”)

National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977) (where an injunction imposes a prior restraint on First Amendment rights, strict procedural safeguards, including immediate appellate review, must be provided.)

Farmers Insurance Exchange v. Weemhoff, 2002-Ohio-5570 (“The rationale underlying [the principle that a grant of a temporary restraining order is not a final appealable order] is that a temporary restraining order is provisional in nature and is intended to preserve the status quo of the case pending the final hearing. However, where the trial court enters a temporary restraining order that exceeds the preservation of the status quo, and requires affirmative  acts  or  restraints  on  the  part  of  one  of  the  parties,  then  the  temporary  restraining order is the equivalent of a preliminary injunction.”)

Nexus Gas Transmission, LLC v. Camelback, Ltd., 2016-Ohio-624 (5th Dist.) (“The granting of a temporary restraining order, when the ultimate relief sought is a permanent injunction, is generally not a final appealable order.”)

Bey v. Rasawehr, 2020-Ohio-3301 (Court invalidated an injunction that imposed a content-based restriction on speech because there had not first been a finding that the speech fell outside the ambit of First Amendment protection.)

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices DeWine*, Donnelly*, and Fischer.

No: Justices Kennedy, Stewart, and French

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

Niesen and White’s Proposition of Law Accepted for Review

When a lower court imposes a prior restraint on expression, immediate appellate review is required.

Niesen and White’s Argument

Although this case presents a narrow procedural question, it implicates core First Amendment values. For over fifty years, prior restraints on speech have been afforded strict procedural safeguards, including immediate appellate review. Contrary to the First District’s overly technical approach, the availability of appellate review turns not on whether an order is titled a TRO or an injunction, but rather if the order imposes a prior restraint on speech. Trial court orders which restrain speech are prior restraints, requiring immediate appellate review. Affirming the First District’s opinion would permit Ohio’s appellate courts to sidestep their constitutional obligation to review presumptively unconstitutional prior restraints on speech.

Loss of First Amendment freedoms, even for a short period of time, constitutes irreparable injury and runs the risk of improper censorship. Immediate appellate review and increased judicial scrutiny of prior restraints mitigate those dangers, as confirmed by precedent from both this Court and the the United States Supreme Court.

The trial court itself explicitly noted that Niesen and White’s speech is constitutionally protected, but nevertheless restrained their speech. To this day, Niesen and White are precluded by court order from discussing or identifying a public official, who acted in a public capacity on a matter of public concern, who then sued them for criticizing him in a public forum. Nor did the trial court find Niesen or White’s speech to be defamatory before restraining it. The form of speech involved here is of the utmost value in the First Amendment hierarchy. Access to immediate appellate review does not turn on whether the order is called a TRO or a preliminary injunction. It turns on whether the order—whatever it is called—restrains constitutionally protected expression.  The First District’s refusal to review the prior restraint simply because it is titled a TRO threatens core First Amendment values and must be overruled.  

M.R.’s Argument

A trial court’s grant of a limited TRO, aimed only to maintain the status quo until a final hearing on a preliminary injunction can be held, is not a final appealable order. The First District’s decision is consistent with Ohio precedent and for the following reasons, should be affirmed.

First, contrary to Niesen and White’s contention, the limited TRO in this case is simply a provisional, limited order, not a prior restraint on speech. Niesen and White’s entire briefing is a thinly veiled attempt to elevate their malicious, false accusations that M.R. is a white supremacist to the highest level of First Amendment protection. In actuality, the demonstrably false, defamatory comments that Niesen and White made against M.R. are not even protected by the First Amendment. Although the free speech merits of this case are not properly before the Court, even if the TRO is considered a prior restraint on speech, not all prior restraints are unconstitutional. In fact, Niesen and White’s desire to falsely portray M.R. as a racist police officer during a time of rising anti-police sentiment are precisely the compelling circumstances necessary to tilt the balance in favor of issuing a TRO.

Second, neither the trial court, the First District, nor M.R. are responsible for the enduring nature of this case. Rather, it is Niesen and White’s own disregard for well-settled judicial processes that has prolonged what should have been a brief, temporary order. The limited TRO in this case was only to be in effect for six days, but Niesen and White themselves postponed the preliminary injunction hearing not once but twice. Then, instead of addressing arguments against the TRO at the postponed hearing, Niesen and White improperly appealed the decision. Because they did, the trial court did not have the opportunity to make any evidentiary ruling in the preliminary injunction hearing.  If anything, their arguments highlight why a TRO is not considered a final appealable order—challenging it in a lengthy appeals process undercuts its purpose to be “temporary.” Niesen and White have not cited to any authority for why the Court should diverge from this general, well-settled rule.  

Finally, even if the Court were to find the TRO to be a constitutionally protected prior restraint on speech, the harm to M.R. from the disclosure of his personal information far outweighs any harm to Niesen and White.

M.R.’s Proposed Counter Proposition of Law

A TRO which maintains the status quo until the preliminary injunction hearing by prohibiting the publication of a police officer’s personal identifying information is not a prior restraint subject to immediate appellate review.

Amicus in Support of Niesen and White

Eugene Volokh, et al.

Amici, led by UCLA School of Law professor and scholar Eugene Volokh, include nine First Amendment professors from Ohio and California law schools and six organizations—the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group, the First Amendment Lawyers Association, and the Institute for Free Speech. The academic amici have written articles about and taught for decades on the legal issues involved in this case. The organizational amici are interested in protecting the First Amendment guarantees of writers, journalists, and citizens.

A court order that forbids Ohio citizens from publishing information about a public official is a sweeping prior restraint on speech, one that is presumptively unconstitutional and can be appealed immediately. First, the TRO in this case is a prior restraint—it is a judicial order that forbids certain speech before it is communicated. Additionally, the prior restraint in this case was imposed without a judicial determination that the statements were actually defamatory. Second, prior restraints are subject to immediate appellate review—as held by the United States Supreme Court and Ohio courts. Prior restraints cause immediate and irreversible harms that, in effect, amount to censorship. The trial court’s TRO allows government officials to use the judiciary to immunize them from public criticism. Finally, in the interest of judicial economy, this Court should find that appellate review of this TRO is proper and proceed to the merits of the case. On those merits, the TRO is an unconstitutional content-based regulation of protected speech. The First District’s decision should be overruled.

The Ohio News Media Organization, et al.

Amici include the Ohio News Media Association, the Ohio Coalition for Open Government, and the Ohio Association of Broadcasters—three media associations interested in ensuring Ohio’s court system remains open to the public and press, so that vital information can be shared with Ohio citizens. Further, these Ohio news media associations have not had access to a basic question in this case: who filed the lawsuit?

Notwithstanding the TRO issue, there is another option in this case: the First District could have treated the appeal as an action seeking a writ of mandamus or a writ of prohibition. The Court should use this case to confirm that non-parties, such as amici, can also challenge prior restraints by seeking a writ of prohibition or mandamus. In fact, these writs are often the only avenue available to members of Ohio’s media to challenge unconstitutional orders restricting speech or access to information. The Court’s opinion should validate that news associations can seek these writs to increase transparency, faith in Ohio’s judicial system, and the likelihood that justice is administered fairly without regard to a litigant’s status.

Student Contributor: Brandon Bryer