What’s On Their Minds: Is the Temporary Restraining Order in this Case a Prior Restraint on Speech Subject to Immediate Appellate Review? M.R., a Cincinnati Police Officer pleading under a pseudonym v. Julie Niesen and Terhas White and James Noe and Alissa Gilley.

By Marianna Bettman on November 23, 2021

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

“At the time that the trial court said it (the T.R.O.) is to remain in effect, had it already expired?”

Justice Brunner, to counsel for White

“In your view what is in front of us?”

Justice Fischer, to counsel for M.R.

On November 9, 2021, the Supreme Court of Ohio heard 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. Justice Stewart was not physically present but viewed the argument on streaming and will participate in conference.

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. The trial court 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 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.)

*Florida Star v. B.J.F., 491 U.S. 524 (1989) (striking down state statute that made it unlawful to “print, publish, or broadcast” the name of a sexual assault victim.)

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.)

*Cited by counsel at argument

Read the oral argument preview of the case here.

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.

At Oral Argument

The appellants shared oral argument time with their amicus Professor Eugene Volokh.

Arguing Counsel

Jennifer M. Kinsley, Kinsley Law Office, Cincinnati, for Appellant Terhas White

Erik W. Laursen, Laursen & Mellott, LLC, Cincinnati, for Appellant Julie Niesen

Professor Eugene Volokh, UCLA School of Law, for amici 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.

Zachary Gottesman, Gottesman & Associates, LLC, Cincinnati, for Appellee M.R., a Cincinnati police officer

White and Niesen’s Argument

This is both a procedure case and a First Amendment case. In Bey v. Rasawher this Court unanimously held that any order restraining speech is a prior restraint and in National Socialist the U.S. Supreme Court made clear that that requires immediate appellate review.

The court of appeals decision in this case gives unlimited power to a single trial court judge to silence political discourse about a matter of public concern. This Court should hold that immediate appellate review is required when trial courts issue prior restraints on speech.

The Court should not get hung up on what this order was called. It had attributes of a preliminary injunction and was to remain in effect while the case was pending. The TRO was renewed on August 13 and was to remain in effect until September 1 which was the date the preliminary injunction motion and other motions were to be heard. In Bey this Court resoundingly held that regardless of whether the trial court order is called a TRO or called a preliminary injunction it operates as “a classic prior restraint on speech.”

It is clear from the trial transcript that the court restrained speech related to personally identifying M.R. In the transcript the court specifically instructed the parties and other people in the courtroom not to engage in that kind of expression. So, there are indicia of prior restraints both in the transcript and the court order. This Court is clear that when prior restraints are issued, when there are court orders that restrain expression, when a single judge attempts to limit political discourse, there must be immediate appellate review.

The trial court’s order also restrains a number of critical comments that could be made about M.R. As public interest in this case has grown, the amount of information it would take to personally identify M.R. has gotten smaller. Ms. White and Ms. Nieson are very restricted in what they can say about M.R., including his name, where he works or particular meetings he may have attended. To do so would necessarily personally identify him because this case is so prevalent in the public domain. So, the scope of this order is very broad. Their future speech with respect to M.R. was enjoined to the extent that they would personally identify him.

The issue before the Court is what procedural requirements are necessary to ascertain the scope of these kinds of court orders. This kind of review never occurred because the court of appeals preliminarily dismissed the appeal too quickly. The U.S. Supreme Court is clear that when there is a prior restraint- and temporary restraining orders function as prior restraints- there must be immediate appellate review.

Argument of Amici in Support of White and Nieson

When criticizing someone, one generally criticizes the person by name. That’s the way people talk and expect to hear conversations. Referring to someone just by initials seems oddly abstract and disconnected from the facts. It’s important for people to check out the criticisms, to find out if there are other things the person may be accused of doing, or to inquire whether what has been said is not right at all.

The U.S. Supreme Court has recognized this in Florida Star v. BJF, a case far removed from government officials. That case involved a state statute banning the publication of the names of rape victims. The Court held that the statute was a restriction on a matter of public concern that fails strict scrutiny. The Court struck down that statute both in its civil and criminal liability aspects. The Court’s rationale was because the subject matter of the speech was a crime– this was a newspaper covering a crime—that was a matter of public concern, so the identities of the people involved in the incident was of public concern, too. And that case simply involved a crime victim. Here we have a government official who would be treated as a public official under libel law and that is something that is constitutionally protected and viewed as fully valuable political speech.

With regard to the criticism of government officials, everyone has a First Amendment right to criticize them by name. Are there any exceptions? Perhaps to use some standard First Amendment terms, something which is a clear and present danger is an exception to the general rule. But the mere possible risk of violence which regrettably all police officers and all people are subject to, cannot be enough to justify an order to a publisher of a newspaper or a blog forbidding the use of the person’s name.

Under this Court’s decision in Bey, TRO’s and preliminary injunctions are prior restraints. This Court said that quite clearly in that case. And in the National Socialist Party decision, prior restraints are subject to immediate appellate review.

The Court could send this back to the Court of Appeals to issue a decision. That would certainly be an important decision supporting First Amendment independent appellate review rights. But one way of achieving immediate appellate review is for this Court, which has the record and all the information, to take the opportunity to terminate the matter quickly. But if this Court chooses instead to send the case down to the court of appeals with instructions to apply National Socialist Party, that would also be a sufficient option.

M.R.’s Argument

This case is not about the First Amendment. It’s a civil procedure case. And it is about whether a TRO remains in effect after a certain number of days. The appellants have appealed an order that expired more than a year ago. The TRO is not still in effect. There is no court order precluding the appellants from identifying M.R.

The judge did grant a TRO, but the parties never criticized it, never objected to the language she used, and didn’t ask her to modify it. That order came out on July 24th The hearing was to resume on July 30^th. That hearing was continued until August 11^th. On August 11^th, no one on behalf of the appellants brought to the judge’s attention the language they now object to. They never sought clarification or brought up the duration. They let it go, they requested a continuance, and in requesting a continuance, the court said the order will remain in effect if you are requesting a continuance, or we can go forward right now. They elected the continuance option. And then they filed this appeal. If anyone kept the TRO in effect for longer than it should have been, it was appellants.

After the First District’s opinion, there was the order allowing the plaintiff to proceed under a pseudonym. So that remained in effect but had no injunctive effect on the appellants. That was merely the case caption. Once the First District came out with this decision the appellants were free to call the police officer by his given name.

We are deprived of a record in this case. The only evidence of record is the appellee’s affidavit which was the only evidence received by the court. There was never any cross examination. Exhibit 2 to that affidavit is the only thing that brought us here today. Those are social media posts that evidence a malicious intent to hurt M.R. and hurt his family because he is a police officer accused of being a racist.

The trial judge got it right. She said she was going to let the appellants make their social media posts. That is protected First Amendment speech. But she correctly did not permit the publication or dissemination of M.R.’s date of birth, social security number, phone number, email, residence address, kid’s names, where the kids go to school, or his wife’s name. That’s what the judge prohibited them from publicizing. There is no First Amendment right to publish your social security number, your residence address, or your children’s names. There’s no First Amendment right to do that to M.R., either. But now the Appellants can publish all of that. Although it would be wrong, there is no court order precluding them from doing so.

The TRO in this case is not a preliminary injunction. It’s based on an affidavit, not cross examination or live testimony. Without that evidence the court can’t really do the job of reviewing what’s been done here. That’s appellants’ fault. In M.R.’s view there is nothing now pending before this Court.

What Was On Their Minds

What Exactly Was Before the Court

Let me ask a procedural question, said Justice Fischer. There was a TRO entered and a second one entered and that was it. And it ran out on August 7. The case was appealed August 18. I’m wondering whether there was an order in effect to appeal. If the TRO was not renewed, and the other side agreed to follow the rules until September 1 or whenever that hearing was set, is there anything really in front of us?

Isn’t the only issue whether the order is immediately appealable, asked Justice DeWine? Why would we get to the merits? Why wouldn’t we just say its immediately appealable, it goes back to the First District, and they issue the appeal?

The Temporary Restraining Order

This restraint was from uttering the words publicly, correct, asked Justice Brunner? Had the TRO expired by the time the court extended it? She added that a TRO expires in two weeks unless it’s extended for a like period of time. Was it renewed by a specific finding that the court was reimposing or was imposing a second TRO? What are the appellants supposed to do if they’ve been in the situation where the judge says, rightly or wrongly, you can’t identify this person during the pendency of this lawsuit? Would they violate that? Would they go against what the judge said even reading Civil Rule 65? The First District essentially said that this was not in effect a preliminary injunction because they didn’t hold the hearing, but as a TRO it could not be appealed. So where did that leave the parties at that juncture? After the First District’s decision, were the appellants free to publicly name M.R.? If the First District said it was not a preliminary injunction and we look at Civil Rule 65 and the TRO had not been consented to by both parties and more than 28 days had passed, then they really weren’t constrained from doing anything and the judge didn’t have the basis to order it, correct?

What’s the political discourse here, asked Chief Justice O’Connor? Isn’t it the identity of M.R.? M.R. asked the court to preclude the postings on social media and the judge did not do that. They can post anything they want on social media about M.R. without saying his name. The trial court granted the temporary restraining order and enjoined the defendants from publishing his personal information That’s the only thing they were precluding. Couldn’t they say anything they want about this police officer except his real name? Couldn’t they say M.R. the police officer who is suing us in such and such a case is a racist? They know M.R. is the pseudonym, they know he is a police officer, and they know he is filing a lawsuit. So, couldn’t they say M.R. the police officer who is suing us is a racist? Could the appellants publish the officer’s name, address, his wife’s name, his kids’ name, and where they go to school. Can they do that right now? Is there any court order precluding them from doing so? Did the trial court issue any order after the 28 days? What did M.R. think the judge’s order meant?

Is the TRO still in effect, asked Justice DeWine? If not, is there any reason these people can’t identify the police officer? I think what we are being asked to do is to write a rule that essentially says that any prior restraint is immediately appealable. He added that he was a concerned about how exactly that rule would work. There’s a lot of things that could be viewed as prior restraints, he noted. There could be a discovery order that says that materials for counsel’s eyes only cannot be disclosed to the public. Certainly, that would be a prior restraint. But I think most people would not think those kinds of orders are immediately appealable. So, what’s the distinction here? Saying someone can’t say something happens all the time in domestic relations court, and in discovery. Are all those immediately appealable? That seems a very difficult rule, he added. What if the order had just said you can’t disclose the officer’s social security number. Would that be immediately appealable?

Why did the appellants request a continuance, asked Justice Donnelly?

Did the judge limit her order by defining what personal identifier really meant, asked Justice Kennedy? Why should there be a broad rule in this case? In contrast to this case, in Bey, there was a full final hearing order. Both sides were there. Both sides presented testimony. It became a final order. It’s clear from that record it wasn’t based on an ex parte order. If you take the argument that was just made, the quality or characters of the TRO really sounded like a preliminary injunction. Just because you write the word TRO doesn’t really mean it’s a true TRO if it extends beyond 14 days if you’re doing other motions within that. Why shouldn’t there be a narrower approach instead of trying to write a rule based on these facts? Why wouldn’t it be argued to the appellate court that when there is an appeal of a TRO that has the qualities or characters of a preliminary injunction that would be immediately appealable? Why wouldn’t we look at that as the first step instead of going to the constitutional issue? Civil protection orders and anti-stalking orders can be issued by a court ex parte, Kennedy noted. Thousands of them are issued every day. So every single one of those orders if it does anything related to restraining speech are immediately appealable though they are narrow in window and in function to get you to a full final hearing within 10 days. All those hundreds of thousands of orders are now immediately appealable within that ex parte framework without waiting for that full final hearing? Later she noted that the Bey case came from an anti-civil stalking order. There was a prior restraint on that speech and the ex parte order which then flowed into the full final hearing order which would have extended for 5 years. But the final appealable order occurred as a result of the full final hearing. We didn’t take that case in on an ex parte order, she commented.

First Amendment Concerns

Is there any circumstance where the use of initials or some other pseudonym would be appropriate, asked Chief Justice O’Connor? Should there never be any restraints on speech? Are there any times where restraint would be appropriate? Yelling fire in a crowded theatre?

Why would the Court reach First Amendment issues, asked Justice DeWine?

How it Looks from the Bleachers

To Professor Emerita Bettman

Despite an incredible number of very convoluted questions, the Court could well agree with Mr. Gottesman that nothing is now pending before the Court and dismiss the appeal. Or the Court may well do what Justice DeWine suggested early on -declare the order immediately appealable and send it back to the Court of Appeals.

The arguments of both sides could not have been more different. The appellants made lofty First Amendment arguments while Mr. Gottesman, for M.R. was pragmatic and down to earth. It will be interesting to see how the Court handles this.

To Student Contributor Brandon Bryer

I am personally a proponent of broad First Amendment rights, but I predict either that the appellants do not win outright or, if they manage to prevail, the holding will be cabined to the specific facts of this dispute. There is clear confusion amongst the parties (and the justices, for that matter) as to whether the TRO was intended to last for the entirety of the case or just for a brief period of time. My reading of the record and the timeline of events suggests that the TRO was never intended to last for the duration of the case and the only reason it did not expire was because of appellants own maneuvers. Moreover, it seems that the appellants only answer to any tough question from the justices is “this is precisely why we need appellate review.” I am sympathetic to the interests at issue, but to be frank, I think the appellants have (intentionally or not) over exaggerated the TRO in this case to secure a robust pro-First Amendment ruling. For a couple of reasons, I don’t think the Court will take the bait.

First, to echo the concerns shared by Justices Kennedy and DeWine, the appellants seek an overly broad rule. Hundreds, if not thousands, of protective orders that restrict speech or the spread of information are issued by Ohio courts every day. When asked point blank whether every one of these orders should be immediately appealable, appellants unconditionally said “yes.” Justice Brunner suggested a “public speech” limiting principle, but appellant’s counsel was insistent on a broad rule. Such a rule would threaten to undermine judicial efficiency and flood appellate court dockets. Second, I think the justices have seen through appellant’s First Amendment narrative in this case and are more focused on the narrow procedural question. In fact, Justice Fischer asked if there was even anything left to be decided, to which counsel for M.R. answered “no, there is nothing.” I predict the Court rules against appellants. To the extent that a majority might agree with appellants position, the ruling is going to be so narrow as to carry little precedential value going forward. I also would not be surprised if the Court dismisses the case as improvidently allowed. Although the underlying facts and amici counsel Volokh add some shock value to this case, I don’t see this case ultimately standing for anything too profound.