Not-So-Anonymous Cop Continues To Argue Courts Should Violate The First Amendment To Protect Him From The Consequences Of His Actions – Techdirt

from the update-your-status,-Officer-Asshat dept

I went back to Ohio/but my First Amendment was gone

For those of you just joining us, allow me to catch everyone up. In the wake of protests against police violence and multiple people realizing that online anonymity only extends as far as anyone's personal opsec, an "anonymous" Ohio police officer decided to sue (anonymously!) people for claiming he was some sort of white extremist.

The pseudonymous "M.R." -- who filed a lawsuit in an Ohio court claiming he was "defamed" by people pointing out his questionable posts" -- is a Cincinnati police officer. Thanks to his quotation of social media posts referring to his questionable behavior, it was pretty easy for online, part-time sleuths to link "M.R." ("Michael Ryan") to Officer Ryan Olthaus.

Despite the fact that M.R. had been outed as Officer Ryan Olthaus, a local court allowed "M.R" to pursue his defamation lawsuit anonymously. Not only that, but it granted a temporary injunction forbidding the people M.R. had failed to de-anonymize from saying anything negative about the officer involved in two questionable shootings.

Hello, prior restraint! This order has been appealed and both the really-not-that-anonymous-cop and people on the side of free speech are arguing about the First Amendment. Since it's Officer Ryan "M.R." Olthaus on the early winning side (as appellee), we'll deal with his ridiculous motion [PDF] first. (h/t local lawyer Jeffrey Nye, who is challenging the unconstitutional gag order.)

According to M.R.'s lawyers, no one can appeal a TRO. Not only is it not appealable, but the larger issues show the aggrieved cop is right. To wit, an editorial:

But on deeper level, this case highlights the nefarious attempts of anti-police protestors, who, after maliciously defaming a police officer as a white supremacist on social media during a heightened anti-police climate, seek to circumvent the judicial process under the false guise of First Amendment protections.

Who wrote this, a police union? The perceived antipathy of non-party John Q. Public has zero bearing on this case. This case is between the cop being accused of being a white supremacist and those who accused him of being one. It has fuck all to do with Officer Ryan Olthaus' personal feelings about the mood of the (non-party) nation.

He goes on to call the appeal "improper," forgetting that TROs and other injunctions/restraining orders can almost always be appealed. Why? Because "doxing," I guess.

They make this claim even though the potential harm to the officer and his family from the publication of his personal information, occasioned by the protestors own baseless and malicious social media posts, far outweighs any burden from the limited restriction on doxing him.

Potential harm is indeed a factor when seeking injunctions. It all depends on whether the courts feel the unrealized harms are probable enough to warrant restrictions. And this goes at least doubly for cases where constitutional rights are implicated. Olthaus wants "because I said so." The legal system (at least the one lying beyond the one that granted the stupid order that violated citizens' free speech rights) will make the final declaration. Simply claiming to be the victim of unspecified (and undocumented) harassment isn't enough. This is evidence of nothing, as far as it applies to Officer Olthaus:

Recent FBI data show upticks in police officer killings during years when there have been major incidents of civil unrest across the country.

"FBI data" is not "evidence from the officer's personal experience." While Olthaus claims he's threatened, he provides no evidence of any threats beyond that to his reputation. The arguments made before the court are bad. Just irredeemably bad. For instance:

In a thinly veiled attempt to circumvent the appellate process, Niesen/White advance an outcome determinative argument that the TRO constitutes a prior restraint on constitutionally protected speech and is therefore automatically appealable.

LOL. Buddy, there's nothing "thinly veiled" about it. Multiple First Amendment lawyers agree this restraining order violates the First Amendment. They are not trying to "circumvent the appellate process." They are asking a higher court to weigh in on the Constitutional matter, which is not only normal, but should be expected when a cop claims he can only sue under a pseudonym and sues over statements of opinion that deal with matters of public interest. No one is "disguising" anything. The court granting the TRO was completely fucking wrong.

God forbid anyone dox Ryan Olthaus but the Cincinnati Police Department. That's the argument. This is also the argument: one that ignores Supreme Court precedent in favor of mid-level state opinion:

While prior restraint on speech carries a "heavy presumption against its constitutional validity," New York Times Co. v. United States, 403 U.S. 713, 723, 91 S.Ct. 2140, 2146, 29 L.Ed.2d 822, 830 (1971), not all prior restraints are per se unconstitutional. Connor Group v. Raney, 2nd Dist. Montgomery No. C.A. 26653, 2016-Ohio-2959, 56. The Court must consider the restriction in its context of litigation and in particular the temporary nature of the order, which must be viewed differently from limitations imposed in broader contexts. Id. at 56. While individuals have a right to communicate freely, a temporary restraint on speech is proper in compelling circumstances. Id. at 56.

On one hand, there's a Supreme Court decision that governs hundreds of defamation suits. On the other hand, the one that M.R. likes, the [squints at filing] Montgomery County decision doesn't even say what he thinks it says.

Unsurprisingly, those opposing the prior restraint have to waste far less paper offering their take on the TRO. The one [PDF] offered by the appellants only runs eight pages, once you subtract the table of contents and signature page. It points out the officer is wrong about the law, even while apparently represented by actual lawyers. And it's this complete wrongness that demands immediate review.

M.R.s confusion as to important points of First Amendment law including what kind of speech is protected, what standards apply to public officials in defamation cases, and how far a court may go in restricting speech that has not yet been uttered are precisely the kinds of questions a court can address through appellate review. In fact, M.R.s arguments about harm and the preservation of the status quo demonstrate precisely why an immediate appeal is required: so that the First Amendment interests of all parties can be resolved swiftly, fairly, and with accurate constitutional precision.

It doesn't matter what one Ohio court chose to focus on: it's still unconstitutional.

The trial courts order is a classic prior restraint. It silenced speech on a matter of public concern, and it altered the status quo by requiring Ms. Niesen and Ms. White to silence their ongoing dialogue about a public officials conduct. From the advent of the Supreme Courts prior restraint jurisprudence, immediate appellate review has been required under these circumstances, particularly when courts and not other branches of government impose the orders of restraint. The court of appeals departed from this requirement by hyperfocusing on the title of the order a temporary restraining order, as opposed to a preliminary injunction rather than its impact upon expression. As a result, the court of appeals erred in failing to provide Ms. Neisen and Ms. White the immediate appellate review to which they were constitutionally required.

The same goes for the amici brief [PDF], composed by several First Amendment lawyers and submitted by Jeffrey Nye. It only takes seven pages to rebut the 21 pages the defensive cop submitted. Is a cop more worthy of courtroom protection than the average accused person? Inquiring First Amendment minds what to know:

Nor can this First Amendment right be defeated simply by speculation that publishing a persons name might expose him to some risk of attack in the future. That risk, regrettably, is present whenever someones alleged misconduct is publicly discussed. An article mentioning an accused (or convicted) criminal might lead some people to attack or threaten the criminal. Likewise with an article discussing a business figure who is accused of unfair practices, or, as here, a post discussing a public official who is accused of acting improperly.

The bottom line is this when it applies to a public servant who has already been named publicly elsewhere:

Niesen and White have a First Amendment right to criticize M.R. by name. If their allegations are found to be defamatory at a later trial, M.R. may be entitled to a damages awardbut he is not entitled to a pretrial prior restraint, such as the one the trial court entered.

M.R. is Officer Ryan Olthaus. It doesn't matter what he does now. People already know. But if courts continue to entertain his baseless arguments, the First Amendment is going to suffer collateral damage from this officer's assertion that he should not be subjected to criticism, much less unspecified harassment for his actions. Fuck tha' Police indeed, but especially this guy who thinks the First Amendment should be subservient to his unverified allegations about potential threats to his safety.

When it comes to cases like these, the law shouldn't be impressed when you throw your badge around. In fact, your claim that you're a public servant should work against you. Criticism of government employees -- even when unfair or misguided -- receives the utmost of Constitutional protection. Except in this case where a court decided a cop was more worthy of protection than the people criticizing him and his actions. The lower court is wrong. Hopefully, this will be reversed, no matter how much money the cop (Ryan Olthaus) has to spend to be wrong about First Amendment rights.

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Filed Under: 1st amendment, cincinatti, defamation, free speech, m.r., police, prior restraint, protests, ryan olthaus

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Not-So-Anonymous Cop Continues To Argue Courts Should Violate The First Amendment To Protect Him From The Consequences Of His Actions - Techdirt