The Ohio Supreme Court’s decision today in State ex rel. Cincinnati Enquirer & Volokh v. Shanahan (written by Justice Stewart); congratulations to my excellent pro bono local counsel Jeffrey M. Nye on the victory:
A Cincinnati officer who used the pseudonym M.R. as his police name in July 2020 filed a complaint for injunctive relief. A Hamilton County Court of Common Pleas filed an injunctive relief complaint. He claimed that many people had falsely claimed that he was a white supremacist. M.R. M.R. also filed a complaint. M.R. was allowed by Judge Megan E. Shanahan. M.R. was allowed to continue in the suit using the pseudonym, partially sealed M.R.’s affidavit at his request…. It was stated that:
A police officer is the plaintiff in this case. He was involved with the arrest of dangerous and violent criminals. An officer is at risk of physical injury because his job duties. The officer’s job duties expose him to physical harm. It is also dangerous to demand that the public have access to identifying information. With the increase in violence against active and retired law enforcement officers on and off duty, there is a serious risk of bodily harm. One defendant threatened to publish, by writing, the personal information of the officer and any other information in order to “dox” him. It is a threat that the Court considers real and immediate.
M.R. was threatened, Judge Shanahan didn’t expressly name the evidence. Although Judge Shanahan did not explicitly identify the evidence supporting her finding that M.R.’s affidavit. That post’s author stated that he had thought about making M.R. public.The poster stated that he had been thinking about making M.R. public, along with his name and address. He also expressed concerns over the legality. The poster eventually stated, after exchanging messages, that he would not share the information with anyone else.[f]Now or later
M.R. continued to be allowed by Judge Shanahan in the second sealing order. M.R. could continue to work pseudonymously. However, Judge Shanahan’s second sealing orders modified the original order and allowed M.R.Public access to’s affidavit. M.R. was not mentioned in the partially redacted version.M.R. A wife and two children. The exhibits to the affidavit remained sealed….
In the beginning, the court ruled that sealing the affidavit was not proper.
[Ohio Courts Rule of Superintendence]45E(2) permits a court the power to limit public access to a document “if it finds clear and convincing evidence” that the public’s presumption is justified by higher interests. … Judge Shanahan has not shown that the evidence clearly and convincingly justified restricting access to M.R.’s affidavit. First, it is clear that the post on social media the judge refers was not intended to make M.R. public.The name of the poster, his address, and numbers. He asked if it was legal to disclose information about M.R. The poster did not rule out the possibility of M.R. being released.He suggested that M.R. would be released if he was informed that this was legal. M.R.M.R.Because the poster already owns this information, he/she can provide his/her name, address and telephone numbers.
Even if the poster made a threat to make M.R. public, it was not enough.Judge Shanahan does not believe that M.R. could be hurt by this publication. Sup.R. 45(E)(2). United States v. Cook(N.D.Miss.2020). (discussing “doxing”, and concluding, “sharing public data, although potentially offensive and disagreeable does not rise above the level of an actual threat.” M.R. was not restricted in the order.Judge Shanahan stated that there are real dangers for police officers in her affidavit. However, M.R. He had not provided any evidence that he or his family were at risk of being physically hurt.
Judge Shanahan concludes by arguing that there is no judicial review of the case. Inquire Volokh, and M.R. were not affected.Volokh and her family have not been affected by the partial sealing of M.R. Inquire It has made public the name and identity of M.R. It is irrelevant, however, whether M.R. Inquire Volokh and Volokh are aware of M.R.Volokh and his identity, or whether they are allowed to publish his name. The question is whether M.R.The issue is whether documents filed in M.R. The Inquire Volokh does not have to prove they are injured to get relief in mandamus.
It Inquire Volokh has a legal right to access M.R.Judge Shanahan is legally bound to give access to the affidavit. Accordingly, we grant a writ of mandamus in both cases ordering Judge Shanahan to make the affidavit fully accessible to the public….
M.R. The court ruled that M.R. shouldn’t be allowed to sue pseudonymously.
M.R. asked Judge Shanahan whether she lacked the authority. The judge claims that she was only able to review whether Judge Shanahan had the authority to allow M.R. to use a pseudonym. The judge cites several instances in which the appellate court examined whether an appeals court had overruled a trial court’s discretion and granted or denied a motion to proceed pseudonymously. These orders are often reexamined by the appellate court. AppealThese are subject to regular review by the appellate courts in order to determine if there is an abuse of discretion.
The cases that we have before us, however, aren’t appeals. It is an original action in which parties to the underlying lawsuit claim they have been violated by their constitutional or common-law rights. These cases require us to decide a legal question: Has M.R. We cannot defer to Judge Shanahan’s answer, because it would reverse the common-law and constitutional presumption that M.R. must file his lawsuit under his real name. Because Judge Shanahan would require the answer, we cannot ignore his response to this question. Inquire Volokh, to demonstrate that they have the right to M.R.Name on court filings. Therefore, M.R. will be considered de novo. to proceed using a pseudonym….
A litigant may only be permitted to act anonymously in rare cases. If a court finds that plaintiff’s privacy interests outweigh open judicial proceedings, he may be excused from having to identify himself. …
M.R. M.R. requested anonymity because he was concerned that his personal data might be published. Judge Shanahan determined that the threat to M.R. was genuine and could result in an act of violence. His family. M.R. was not at risk. But this threat to M.R. wasn’t enough for him to use a pseudonym. For fear of reprisal, a plaintiff who wants to remain anonymous must demonstrate that. Filing the lawsuit Risk of retaliation. M.R. He did not prove a causal link; he didn’t show any increase in the risk to him and his family if he was required to pursue his lawsuit under his name.
Moreover, M.R. M.R. Three factors should be considered by courts when considering whether a plaintiff claims that a pseudonym must be used to prevent retaliation are (1) the seriousness of the threat, (2) the reasonableness and vulnerability of the anonymous party to such retaliation. M.R. did not show that anyone actually threatened him or his family or that his concerns are reasonable….
A threat to publish someone’s address and telephone numbers does not pose an inherent danger of injury, as noted above in parenthetical. Cook. M.R. Both Judge Shanahan and M.R. These risks are not indicative that M.R. “uniquely will face an increased threat of violence—above the generalized threat of violence that all police officers face—as a result of filing [his] lawsuit.” Doe v. McKesson (M.D.La.2017), Other grounds:; Also see Doe v. McKesson(5th Cir.2019), (reaffirming the decision of the district court to prohibit the use a pseudonym), Other grounds:.
M.R. Finally, even though M.R. M.R. acknowledged that those complaints—which disclose his name—are public records. And Inquire Referred to citizen complaints, when four news articles identified M.R. By name. Thus, M.R. M.R. M.R.M.R. was also disclosed by M.R.’s lawyer.M.R. sought a civil protection order for his wife.’s wife.
Judge Shanahan suggested that M.R.Judge Shanahan suggests that M.R. Support It is important to continue using a pseudonym because it indicates that there are no real people behind the name. Inquire Volokh is aware of Volokh’s identity and has not been harm. According to the judge, Volokh and his identity are known.[t]He only has the practical impact of [her]M.R. order allowing M.R. But that is exactly the point—the public (not just the relators in these cases) has a right to know who is using the court. Except in rare cases, the public has a right to learn that information from the court itself….