Challenge to Prior Restraint on Critics of Police Officer Ends With a Whimper

Today’s Ohio Supreme Court opinion. M.R. v. Niesen:

Common pleas court granted a temporary restraining or (“TRO”) to Julie Niesen and Terhas White preventing them from publishing Ryan Olthaus’ personal information. Ryan Olthaus is a Cincinnati officer. It is up to us to determine whether a speech-restraining TRO may be immediately appealable. But that issue must be left for another day because the TRO has expired and this appeal is moot….

Olthaus brought a civil action against Niesen and White in Hamilton County Common Pleas Court. In the complaint Olthaus claimed that he was responsible for crowd control and security at a Cincinnati City Council meeting in 2020. A large group of citizens demanded that the police be defunded at the meeting. Olthaus once made the gesture of “okay” with his hand. Some saw the gesture as a sign of white supremacy and interpreted it accordingly. Niesen, White and others quickly made a post on social media calling Olthaus white supremacists.

Olthaus sued Niesen and White for false-light invasions of privacy and defamation after they accused Olthaus as a white supremacist. Olthaus requested to be represented under pseudonym, and to submit an affidavit sealed. (In State ex rel. Cincinnati Enquirer v. ShanahanThe court found that he couldn’t proceed anonymously in 2022. Olthaus also sought a TRO and a preliminary injunction compelling Niesen, White, and others to refrain from posting, and to remove, social-media posts referring to him as a white supremacist and restraining them from publishing his personal identifying information….

[The court issued]A TRO prohibits Niesen, White and another defendant publically disseminating Olthaus’s personal identifying details. [The timing for the order, and the extension, is important but I’ll quote it just in the body of the opinion. -EV] [Defendants appealed. -EV]The First District Court of Appeals however concluded that the TRO wasn’t a final appealable order. 2020-Ohio-4368, ¶ 13. Niesen and White appealed to this court, submitting that a court-imposed prior restraint on speech is immediately appealable, and this court accepted jurisdiction….

White and Niesen argue that a TRO acting as a prior restriction on speech must be appealed immediately. We must ensure that the “actual controversies” are not resolved before we can consider their appeal.[y].” The court may dismiss the case, if it is settled.

Civ.R. regulates both the requirements and the scope of a TRO. 65(A). 65(A). This rule stipulates that a TRO will expire according to its terms after it is entered. Not to exceed 14 daysIf the court does not fix the order within the prescribed time, the order is extended for good cause. One-year, identical periodIf the other party to whom the order is directed agrees, it can be extended for longer periods. In the order of extension, the reasons for extension must be stated.

This TRO was signed on July 24, 2020. Common pleas court didn’t issue an order renewing the TRO until August 13, 20, 20 days after it was entered. The TRO was already out of date and the court could not renew it under the terms Civ.R. 65(A), the court lacked the authority to prolong the TRO. A TRO can only be extended within the “time so set” by the original TRO. (Emphasis added.) Id. Id. Although the TRO didn’t have an expiration date but it could be extended to January Term 2022 5, its maximum duration was not more than 14 days after entry. See also id. Accordingly, the TRO ended on August 8, 2020. And even if one accepts the dubious premise that the trial court’s August 13 order somehow extended a TRO that had already expired, the extended TRO would have expired on August 27, 2020….. Because the TRO at issue is no longer in effect, the appeal of the TRO is moot.

This appeal was not saved from dismissal by any of the mootness exceptions. However, it is not possible to apply any exception for matters that can be repeated but are not subject to review. The exception for issues that are capable of repetition and evading review is the one where “‘(1) the challenged case is too short to be properly litigated prior its cessation/expiration; (2) there is reasonable expectation that the same complainant will be subjected again to the same actions. This first element can easily be satisfied as it’s the most rare case that can be resolved in just weeks. But, the second element is not satisfied.

It is not enough for an issue to be capable of repetition between some parties; the issue must be capable of repetition between the “same” parties…. It is unlikely, however that the issue between these parties will be repeated. The TRO expired already and cannot be renewed. Civ.R. 65(A). 65(A). ShanahanThis court ruled that Olthaus cannot proceed anonymously, and should proceed as a person named Olthaus. This means that there’s no chance of this dispute resurfacing. Olthaus would have to stop the defendants identifying Olthaus.

Our duty is to “decide real controversies only between parties legally affected by particular facts”. This appeal does not concern an actual controversy because the TRO in issue is expired. Accordingly, this court is duty bound to dismiss this appeal as moot….

My UCLA First Amendment Amicus Brief Clinic filed an amicus brief in the case, which focused on the substantive unconstitutionality of the order and the need for immediate appellate view of such speech restrictions; many thanks to our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), and my fellow amici Profs. Jonathan Entin and David F. Forte. Andrew Geronimo. Raymond Ku. Stephen Lazarus. Kevin Francis O’Neill. Margaret Christine Tarkington. Aaron H. Caplan. I also represented amici in oral arguments before the court.

Here is the brief. The brief didn’t discuss mootness, largely because the Court of Appeals decision,, hadn’t mentioned anything about it; M.R. The order was not discussed by the brief. His attorneys spent considerable time and money to defend it, likely because they assumed that it was in fact in force. However, the Ohio Supreme Court allowed review and did not dismiss the appeal. So, we had hoped that the Ohio Supreme Court would also focus on First Amendment questions (whether procedural or substantive). But that didn’t happen.

The case is referred to as the “pseudonymity/sealing” side. Shanahan referred to by the court), please see here. Jeff Nye, my lawyer, represented me before the court.