Bey v. Rasawehr (Slip Opinion) , 2020 Ohio 3301 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Bey
v. Rasawehr, Slip Opinion No. 2020-Ohio-3301.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2020-OHIO-3301
BEY ET AL., APPELLEES, v. RASAWEHR, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301.]
First Amendment—Prior restraints—R.C. 2903.214—Civil-stalking protection
order enjoining future Internet postings about a person imposes an
unconstitutional prior restraint on protected speech in violation of the First
Amendment to the United States Constitution—Court of appeals’ judgment
reversed in part.
(No. 2019-0295—Submitted February 11, 2020—Decided June 16, 2020.)
APPEAL from the Court of Appeals for Mercer County,
Nos. 10-18-02 and 10-18-03, 2019-Ohio-57.
_________________
DONNELLY, J.
{¶ 1} In this discretionary appeal we are asked to determine whether a civil-
stalking protection order enjoining future postings about a petitioner imposes an
unconstitutional prior restraint on protected speech in violation of the First
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Amendment to the United States Constitution. We conclude that it does. We
therefore reverse the judgment of the Third District Court of Appeals.
I. BACKGROUND
{¶ 2} In November 2015, appellee Joni Bey’s husband died.
Approximately seven months later, appellant, Jeffrey Rasawehr, Bey’s brother,
ostensibly began writing and posting public comments on craigslist.org and the
Lima News website that accused Bey of having contributed to her husband’s death
and that further accused local public officials of having failed to investigate the
circumstances of his death. In September 2017, after a several-month period of
relative quiet, a new barrage of similar public accusations commenced. A billboard
located near Bey’s home contained a large portrait-style picture of Rasawehr with
the message, “Jeff Rasawehr says, ‘LEARN ABOUT COUNTY CORRUPTION
& COVER-UPS AT…’ CountyCoverUp.com.” (Capitalization sic.) The website
contained a series of Internet postings apparently authored by Rasawehr, including
postings dated September 13, October 1, November 2, and November 3, 2017, in
which Rasawehr reiterated his accusations against Bey and various local public
officials.
{¶ 3} Rasawehr’s father died in January 2008. And in June 2016,
Rasawehr’s mother, appellee Rebecca Rasawehr, began receiving treatment similar
to that of Bey. The June 2016 and subsequent 2017 Internet postings, ostensibly
authored by Rasawehr, likewise accused Rebecca of having contributed to her
husband’s death and again accused local public officials of having failed to
investigate that death.
{¶ 4} On November 16, 2017, pursuant to R.C. 2903.214, Joni Bey and
Rebecca Rasawehr (collectively, “appellees”) each filed a petition for a civil-
stalking protection order (“CSPO”) against Rasawehr. Their petitions, to which
various postings allegedly authored by Rasawehr were attached, were heard by the
Mercer County Court of Common Pleas on December 4, 2017. Appellees each
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testified to the facts set forth in their petitions and the mental distress caused by
Rasawehr’s postings. Rasawehr invoked his Fifth Amendment right and declined
to answer questions put to him by appellees’ counsel.
{¶ 5} On January 18, 2018, the trial court granted appellees’ petitions and
issued CSPOs that prohibited Rasawehr from having any contact with them,
directly or indirectly, coming within 500 feet of them, or entering certain protected
locations. In paragraph nine of the respective CSPOs (“paragraph nine”), the trial
court added the following provision tailored specifically to this case:
IT IS FURTHER ORDERED: RESPONDENT SHALL REFRAIN
from posting about Petitioners on any social media service, website,
discussion board, or similar outlet or service and shall remove all
such postings from CountyCoverUp.com that relate to Petitioners.
Respondent shall refrain from posting about the deaths of
Petitioners’ husbands in any manner that expresses, implies, or
suggests that the Petitioners are culpable in those deaths.
(Capitalization sic.) This order will remain in effect until January 15, 2023.
{¶ 6} Rasawehr appealed and the Third District Court of Appeals affirmed
the trial court’s judgment in both cases. The court of appeals first found that the
evidence in the record supported the trial court’s determination that appellees had
satisfied their burden to establish that the CSPOs against Rasawehr were warranted.
2019-Ohio-57, ¶ 24-34. The court of appeals rejected Rasawehr’s constitutional
challenges to paragraph nine. Id. at ¶ 35-48. One member of the court dissented
but only as to the portion of paragraph nine prohibiting Rasawehr from posting
about appellees on any social-media service, website, discussion board, or similar
outlet or service, finding that provision to be ambiguous and thus unenforceable.
Id. at ¶ 50-54 (Zimmerman, P.J., dissenting in part and concurring in part).
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{¶ 7} We accepted jurisdiction over Rasawehr’s second proposition of law:
“Prior restraints on the exercise of free speech are unconstitutional and
presumptively invalid.” See 155 Ohio St. 3d 1455, 2019-Ohio-1759, 122 N.E.3d
216.
II. ANALYSIS
{¶ 8} This case requires us to consider whether paragraph nine of the
CSPOs issued by the trial court constitutes a prior restraint on protected speech in
violation of the First Amendment to the United States Constitution.1 To resolve
this issue, we will begin by reviewing the law that governs the issuance of CSPOs
in Ohio. We will then consider the First Amendment principles governing
regulations of speech that Rasawehr alleges have been violated. Finally, we will
apply those principles to paragraph nine of the CSPOs issued in this case.
A. Ohio CSPOs
{¶ 9} R.C. 2903.211 prohibits menacing by stalking. R.C. 2903.211(A)
provides:
(1) No person by engaging in a pattern of conduct shall
knowingly cause another person to believe that the offender will
cause physical harm to the other person or a family or household
member of the other person or cause mental distress to the other
person or a family or household member of the other person. * * *
(2) No person, through the use of any form of written
communication or any electronic method of remotely transferring
information, including, but not limited to, any computer, computer
network, computer program, computer system, or
1. Rasawehr’s appeal does not claim protection under Article I, Section 11 of the Ohio Constitution
(“Freedom of speech; of the press; of libels”), so we do not consider whether Ohio’s constitution is
violated by paragraph nine.
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telecommunication device shall post a message or use any
intentionally written or verbal graphic gesture with purpose to do
either of the following:
(a) Violate division (A)(1) of this section;
(b) Urge or incite another to commit a violation of division
(A)(1) of this section.
{¶ 10} “ ‘Pattern of conduct’ means two or more actions or incidents closely
related in time, whether or not there has been a prior conviction based on any of
those actions or incidents.” R.C. 2903.211(D)(1).
{¶ 11} “Mental distress” means “[a]ny mental illness or condition that
involves some temporary substantial incapacity,” R.C. 2903.211(D)(2)(a), or that
“would normally require psychiatric treatment, psychological treatment, or other
mental health services,” R.C. 2903.211(D)(2)(b).
{¶ 12} “ ‘Post a message’ means transferring, sending, posting, publishing,
disseminating, or otherwise communicating, or attempting to transfer, send, post,
publish, disseminate, or otherwise communicate, any message or information,
whether truthful or untruthful, about an individual, and whether done under one’s
own name, under the name of another, or while impersonating another.” R.C.
2903.211(D)(7).
{¶ 13} R.C. 2903.214 provides a civil remedy for stalking victims. R.C.
2903.214(C) states:
A person may seek relief under this section for the person,
or any parent or adult household member may seek relief under this
section on behalf of any other family or household member, by filing
a petition with the court. The petition shall contain or state all of the
following:
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(1) An allegation that the respondent is eighteen years of age
or older and engaged in a violation of section 2903.211 of the
Revised Code against the person to be protected by the protection
order or committed a sexually oriented offense against the person to
be protected by the protection order, including a description of the
nature and extent of the violation;
***
(3) A request for relief under this section.
{¶ 14} R.C. 2903.214(E)(1)(a) states:
After an ex parte or full hearing, the court may issue any
protection order, with or without bond, that contains terms designed
to ensure the safety and protection of the person to be protected by
the protection order, including, but not limited to, a requirement that
the respondent refrain from entering the residence, school, business,
or place of employment of the petitioner or family or household
member.
{¶ 15} A person who violates a CSPO is subject to criminal prosecution for
a violation of R.C. 2919.27 and may be punished for contempt of court.
R.C. 2903.214(K).
{¶ 16} A CSPO issued pursuant to R.C. 2903.214 is a “ ‘special statutory
remedy that is designed to prevent violence * * *.’ ” J.P. v. T.H., 9th Dist. Lorain
No. 15CA010897, 2017-Ohio-233, ¶ 28, quoting Oliver v. Johnson, 4th Dist.
Jackson No. 06CA16, 2007-Ohio-5880, ¶ 1. “The goal of R.C. 2903.214 is to allow
the police and the courts to act before a victim is harmed by a stalker.” (Emphasis
sic.) Irwin v. Murray, 6th Dist. Lucas No. L-05-1113, 2006-Ohio-1633, ¶ 15.
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R.C. 2903.214 “does not create a tort remedy” to compensate the victim for
damages. J.P. at ¶ 28, citing Oliver at ¶ 1. Instead, it provides expeditious remedies
that “are in addition to, and not in lieu of, any other available civil or criminal
remedies,” R.C. 2903.214(G)(1); see also J.P. at ¶ 28.
{¶ 17} In this case, the trial court found upon a preponderance of the
evidence that Rasawehr had engaged in a pattern of conduct that was the proximate
cause of the fear and mental distress experienced by appellees. The court further
found that Rasawehr authored the Internet postings depicted in appellees’ hearing
exhibits “with the knowledge, if not the intent, that his posting of the information
would cause each of the [appellees] fear and mental distress.” Appellees’ mental
distress “included losing sleep, unwanted communication and, in response to
questions by others who have viewed the information on the various websites, their
resulting reluctance to be seen in public due to embarrassment, worry, anxiety, and
humiliation as evidenced by petitioner Bey seeking and receiving psychological
counseling and petitioner Rebecca Rasawehr taking anxiety medication.” Further,
the court concluded that the anxiety of each appellee had “risen to the extent that
each fear[ed] physical harm may be inflicted upon them” by Rasawehr. Concluding
that Rasawehr had violated R.C. 2903.211(A), the trial court issued CSPOs
pursuant to R.C. 2903.214.
{¶ 18} Rasawehr does not contest the trial court’s decision to issue CSPOs.
He instead contests only the relief ordered in paragraph nine of the CSPOs, arguing
specifically that the trial court’s order that he refrain from posting about appellees
on any social-media service, website, discussion board, or similar outlet or service
and that he refrain from posting about the deaths of appellees’ husbands in any
manner that expressed, implied, or suggested that appellees were culpable in those
deaths is a prior restraint on free speech that violates the First Amendment to the
United States Constitution.
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B. The First Amendment and Prior Restraints
{¶ 19} The First Amendment to the United States Constitution provides in
part that “Congress shall make no law * * * abridging the freedom of speech.”
“[T]he Fourteenth Amendment makes the First Amendment’s Free Speech Clause
applicable against the States * * *.” Manhattan Community Access Corp. v.
Halleck, ___ U.S. ___, 139 S. Ct. 1921, 1928, 204 L. Ed. 2d 405 (2019).
{¶ 20} “ ‘[A]s a general matter, “the First Amendment means that
government has no power to restrict expression because of its message, its ideas,
its subject matter, or its content.” ’ ” Ashcroft v. Am. Civil Liberties Union, 535
U.S. 564, 573, 122 S. Ct. 1700, 1521 L. Ed. 2d 771 (2002), quoting Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 65, 103 S. Ct. 2875, 77 L.Ed.2d. 469 (1983),
quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 33
L. Ed. 2d 212 (1972).
{¶ 21} The right to free speech secured by the First Amendment is not
absolute, however, and the government may regulate it in a manner that is
consistent with the Constitution. See Virginia v. Black, 538 U.S. 343, 358, 123
S. Ct. 1536, 155 L. Ed. 2d 535 (2003).
{¶ 22} A regulation of speech that is content-based is presumptively
unconstitutional and is subject to strict scrutiny, which requires that it be the least
restrictive means to achieve a compelling state interest. See Reed v. Gilbert,
___U.S. ___, 135 S. Ct. 2218, 2226-2227, 192 L. Ed. 2d 236 (2015); see also
McCullen v. Coakley, 573 U.S. 464, 478, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014);
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S. Ct.
1878, 146 L. Ed. 2d 865 (2000); Sable Communications of California, Inc. v. Fed.
Communications Comm., 492 U.S. 115, 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93
(1989).
{¶ 23} Content-neutral regulations limiting the time, place, and manner of
speech are constitutional as long as they promote “important governmental interests
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unrelated to the suppression of free speech, and do[] not burden substantially more
speech than necessary to further those interests.” Turner Broadcasting Sys., Inc. v.
Fed. Communications Comm., 520 U.S. 180, 117 S. Ct. 1174, 137 L. Ed. 2d 369
(1997), syllabus. See also McCullen at 486; United States v. O’Brien, 391 U.S.
367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968).
{¶ 24} Like statutes that regulate speech, court-ordered injunctions that
regulate speech are also subject to First Amendment scrutiny. See Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 757, 114 S. Ct. 2516, 129 L. Ed. 2d 593
(1994).
{¶ 25} Rasawehr argues that paragraph nine imposes a “prior restraint” on
his First Amendment right to free speech. “The term ‘prior restraint’ is used ‘to
describe administrative and judicial orders forbidding certain communications
when issued in advance of the time that such communications are to occur.’ ”
(Emphasis added in Alexander.) Alexander v. United States, 509 U.S. 544, 550,
113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993), quoting Nimmer, Nimmer on Freedom of
Speech, Section 4.03, at 4-14 (1984). See also State ex rel. Toledo Blade Co. v.
Henry Cty. Court of Common Pleas, 125 Ohio St. 3d 149, 2010-Ohio-1533, 926
N.E.2d 634, ¶ 20, quoting 2 Smolla, Smolla and Nimmer on Freedom of Speech,
Section 15.1, at 15-4 (2009) (prior restraint refers to “ ‘judicial orders or
administrative rules that operate to forbid expression before it takes place’ ”).
“Temporary restraining orders and permanent injunctions—i.e., court orders that
actually forbid speech activities—are classic examples of prior restraints.”
Alexander at 550.
{¶ 26} A prior restraint is not unconstitutional per se but bears “ ‘a heavy
presumption against its constitutional validity.’ ” Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 558, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975), quoting Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L.Ed.2d (1963). See also
New York Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 29 L. Ed. 2d
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822 (1971). For example, in Organization for a Better Austin v. Keefe, 402 U.S.
415, 415-417, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971), an Illinois court enjoined a
“racially integrated community organization” that was critical of a local real-estate
broker’s business practices “ ‘from passing out pamphlets, leaflets or literature of
any kind, and from picketing, anywhere in the City of Westchester, Illinois.’ ” The
United States Supreme Court ordered that the injunction be vacated, noting:
It is elementary, of course, that in a case of this kind the courts do
not concern themselves with the truth or validity of the publication.
Under Near v. Minnesota, 283 U.S. 697 (1931) [51 S. Ct. 625, 75
L. Ed. 1357], the injunction, so far as it imposes prior restraint on
speech and publication, constitutes an impermissible restraint on
First Amendment rights. Here, as in that case, the injunction
operates, not to redress alleged private wrongs, but to suppress, on
the basis of previous publications, distribution of literature “of any
kind” in a city of 18,000.
Id. at 418-419. The court noted that even if the petitioners’ peaceful distribution of
literature was intended to have a coercive impact on the respondent’s business
practices, that “d[id] not remove them from the reach of the First Amendment.” Id.
at 419. The court declared:
No prior decisions support the claim that the interest of an individual
in being free from public criticism of his business practices in
pamphlets or leaflets warrants use of the injunctive power of a court.
Designating the conduct as an invasion of privacy, the apparent
basis for the injunction here, is not sufficient to support an injunction
against peaceful distribution of informational literature of the nature
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revealed by this record. * * * [R]espondent is not attempting to stop
the flow of information into his own household, but to the public.
Accordingly, the injunction issued by the Illinois court must be
vacated.
(Citation omitted.) Id. at 419-420.
{¶ 27} The fact that expression may now occur in “cyberspace—the ‘vast
democratic forums of the Internet’ in general, Reno v. Am. Civ. Liberties Union,
521 U.S. 844, 868, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), and social media in
particular,” Packingham v. North Carolina, ___U.S.___, 137 S.Ct 1730, 1735, 198
L. Ed. 2d 273 (2017), does not mean that governmental regulation of that speech is
beyond the reach of First Amendment analysis and scrutiny. See Packingham at
1735-1737 (invalidating a North Carolina statute that prohibited registered sex
offenders from accessing commercial social-networking websites); see also Toledo
Blade Co., 125 Ohio St. 3d 149, 2010-Ohio-1533, 926 N.E.2d 634, at ¶ 25, quoting
Citizens United v. Fed. Elections Comm., 558 U.S. 310, 326, 130 S. Ct. 876, 175
L. Ed. 2d 753 (2010) (notwithstanding the emergence of “revolutionary changes in
the delivery of information to the public” through the Internet and other forms of
mass communication, “ ‘[c]ourts, too, are bound by the First Amendment * * *
[and] [w]e [must] decline to draw, and then redraw, constitutional lines based on
the particular media or technology used’ ”).
{¶ 28} Therefore, we must decide whether paragraph nine of the CSPOs
enjoining Rasawehr from posting about appellees imposed an unconstitutional prior
restraint on his First Amendment right to free speech. In doing so, we confront the
practical conundrum such proceedings can present:
Compared to subsequent punishment for crimes of violence, civil
harassment orders are easy to obtain and easy to enforce. These are
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their chief virtues. Compared to subsequent punishment for speech,
prior restraints are also easy to obtain and easy to enforce. These
are their chief vices.
Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. 781, 824
(2013).
III. APPLICATION OF THE FIRST AMENDMENT
TO PARAGRAPH NINE
{¶ 29} Rasawehr contends that by enjoining him from future posting of
messages about appellees, the CSPOs include an unconstitutional prior restraint on
expression covered by the First Amendment. We therefore consider these
prohibitions in light of First Amendment jurisprudence.2
A. Content-based vs. content-neutral restrictions
{¶ 30} Because these injunctive orders regulate speech, we must first
determine whether these regulations are content-based or content-neutral. See
McCullen, 573 U.S. at 478, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (“we think it
unexceptional to perform the first part of a multipart constitutional analysis first”).
{¶ 31} “Government regulation of speech is content based if a law applies
to particular speech because of the topic discussed or the idea or message
expressed.” Reed, ___U.S.___, 135 S.Ct. at 2227, 192 L. Ed. 2d 236. A law is
content based “if it require[s] ‘enforcement authorities’ to ‘examine the content of
2. Rasawehr does not articulate any argument contesting the provision of paragraph nine that
ordered him to remove prior postings from CountyCoverUp.com that related to appellees. Compare
Coleman v. Razete, 2019-Ohio-2106, 137 N.E.3d 639, ¶ 31 (1st Dist.) (order “[r]equiring
[respondent] to remove all existing references to [petitioner] from internet or social-networking sites
that [respondent] operate[ed] or control[led] was narrowly tailored to redress the specific pattern of
conduct that [respondent] had engaged in to knowingly cause [petitioner] mental distress” and to
prevent further mental distress to petitioner, while also “safeguard[ing] free speech concerns”).
Because Rasawehr does not contest that provision here and the ordered removal of prior postings
would not in any case amount to a prior restraint, we do not consider that provision further in this
case.
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the message that is conveyed to determine whether’ a violation has occurred.”
McCullen at 479, quoting Fed. Communications Comm. v. League of Women
Voters of California., 468 U.S. 364, 383, 104 S. Ct. 3106, 82 L. Ed. 2d 278 (1984).
A law is also content-based if it is “concerned with undesirable effects that arise
from ‘the direct impact of speech on its audience’ or ‘[l]isteners’ reactions to
speech.’ ” McCullen at 481, quoting Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct.
1157, 99 L. Ed. 2d 333 (1988).
{¶ 32} Paragraph nine of the CSPOs ordered Rasawehr to (1) refrain from
posting about appellees on any social-media service, website, discussion board, or
similar outlet or service and (2) refrain specifically from posting about the deaths
of appellees’ husbands in any manner that expressed, implied, or suggested that
appellees were culpable in those deaths. Putting aside for the moment the
extraordinary scope of these injunctions, we can only conclude that they are
intended to regulate the subject matter, the content of speech, or both.
{¶ 33} A regulation of speech that is “about” appellees is necessarily a
regulation of the subject matter of that speech. The first sentence of paragraph nine
fully regulates and in this case puts limits on any expression that relates to that
particular subject, i.e., appellees. And the regulation of speech in the second
sentence of paragraph nine about the deaths of appellees’ husbands that says
anything about possible culpability regulates not only the subject matter but also
the message. It is inescapable that a regulation of speech “about” a specific person
(or likely any other specific subject of discussion) is a regulation of the content of
that speech and must therefore be analyzed as a content-based regulation.
{¶ 34} For their part, appellees do not seriously dispute that the regulation
of speech concerning their alleged culpability in the deaths of their husbands is a
content-based regulation. Appellees do, however, dispute that the prohibition from
posting about them in general is content-based and instead contend that this is a
content-neutral regulation. They rely on Commonwealth v. Lambert, 2016 PA
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Super 200, 147 A.3d 1221 (Pa.Super.Ct.2015), in which the Superior Court of
Pennsylvania, the state’s intermediate appellate court, reviewed a comparable
protective order and ruled that the prohibition was “not concerned with the content
of Appellant’s speech but with, instead, the target of his speech, namely, Plaintiff,
whom the court has already deemed the victim of his abusive conduct.” (Emphasis
sic.) Id. at 1229.
{¶ 35} But the “target” of such speech necessarily concerns the subject
matter of the speech. It “cannot be justified without reference to the content of the
prohibited communication.” People v. Relerford, 2017 IL 121094, 422 Ill. Dec.
774, 104 N.E.3d 341, 350 (2017). It requires an examination of its content, i.e, the
person(s) being discussed, to determine whether a violation has occurred and is
concerned with undesirable effects that arise from “ ‘the direct impact of speech on
its audience’ or ‘[l]isteners’ reactions to speech,” McCullen, 573 U.S. at 481, 134
S. Ct. 2518, 189 L. Ed. 2d 502, quoting Boos, 485 U.S. at 321, 108 S. Ct. 1157, 99
L. Ed. 2d 333. We therefore cannot accept appellees’ attempt to characterize the
order banning all posted speech about them as merely a content-neutral regulation.
{¶ 36} Nor can the prohibitions in paragraph nine be considered merely
incidental to a regulation of conduct. See O’Brien, 391 U.S. at 376-377, 88 S. Ct.
1673, 20 L. Ed. 2d 672 (act of burning Selective Service registration certificate could
be prosecuted for violation of law prohibiting destruction of registration certificates
even if conduct was intended to express an idea or belief). On the contrary, the
regulation of expressive activity is the obvious purpose of paragraph nine of the
CSPOs here.
{¶ 37} We therefore conclude that the prohibition of certain future speech
by paragraph nine is a content-based regulation.
B. Exception for speech integral to criminal conduct
{¶ 38} Having determined that speech was being regulated on the basis of
its content does not necessarily mean, however, that it cannot be regulated. The
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First Amendment does “ ‘permit[] restrictions upon the content of speech in a few
limited areas.’ ” United States v. Stevens, 559 U.S. 460, 468, 130 S. Ct. 1577, 176
L. Ed. 2d 435 (2010), quoting R.A.V. v. St. Paul, 505 U.S. 377, 382-383, 112 S. Ct.
2538, 120 L. Ed. 2d 305 (1992). Those categories include: “advocacy intended, and
likely, to incite imminent lawless action; obscenity; defamation; speech integral to
criminal conduct; so-called ‘fighting words,’; child pornography; fraud; true
threats; and speech presenting some grave and imminent threat the government has
the power to prevent * * *.” (Citations omitted.) United States v. Alvarez, 567 U.S.
709, 717, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012) (plurality opinion).
{¶ 39} In this case, the court of appeals suggested—but did not actually
decide—that Rasawehr’s restrained speech could have been “ ‘integral to criminal
conduct,’ ” 2019-Ohio-57, at ¶ 40, quoting Alvarez at 721, and thus within a class
of “unprotected speech,” id. at ¶ 39. Appellees more directly contend that
Rasawehr’s speech is “categorically unprotected” because it is “speech integral to
criminal conduct.”3 For support, appellees cite Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949). In Giboney, unionized ice
peddlers picketed against Empire Storage and Ice Company after it refused to agree
not to sell ice to nonunion peddlers, a practice that would have violated Missouri’s
antitrade-restraint law. When Empire sued to enjoin the picketing, the union
answered by asserting a constitutional right to picket for the purpose of forcing
Empire to discontinue its sale of ice to nonunion peddlers.
{¶ 40} Upholding the trial court’s picketing injunction against the union,
the United States Supreme Court ruled that all of the union’s activities “constituted
a single and integrated course of conduct, which was in violation of Missouri’s
valid law.” Id. at 498. The court expressly rejected the suggestion “that the
constitutional freedom for speech and press extends its immunity to speech or
3. Appellees do not contend that Rasawehr’s restrained speech could be subject to regulation on the
other possibly applicable categories such as defamation or true threats.
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writing used as an integral part of conduct in violation of a valid criminal statute.”
Id. According to the court, “the injunction did no more than enjoin an offense
against Missouri law, a felony.” Id. Because the “sole, unlawful immediate
objective” of the expressive activity was to “induce Empire to violate Missouri law
by acquiescing in unlawful demands,” prohibiting that expressive activity did not
violate rights protected by the First Amendment. Id. at 502. The court explained:
[It] has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the conduct
was in part initiated, evidenced, or carried out by means of language,
either spoken, written, or printed. Such an expansive interpretation
of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in
restraint of trade as well as many other agreements and conspiracies
deemed injurious to society.
(Citations omitted.) Id.
{¶ 41} According to appellees, Rasawehr’s postings are integral to the
criminal conduct of menacing by stalking in violation of R.C. 2903.211(A). But
there has been no judicial determination here that future postings Rasawehr might
make will be integral to the commission of the crime and thus unprotected by the
First Amendment. “The special vice of a prior restraint is that communication will
be suppressed, either directly or by inducing excessive caution in the speaker,
before an adequate determination that it is unprotected by the First Amendment.”
Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 390,
93 S. Ct. 2553, 37 L. Ed. 2d 669 (1973). Speech may not be categorically suppressed
by means of a prior restraint absent a judicial determination that the speech would
be unprotected by the First Amendment. See Freedman v. Maryland, 380 U.S. 51,
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58, 85 S. Ct. 734, 13 L. Ed. 2d 649 (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”).
{¶ 42} Our decision in O’Brien v. Univ. Community Tenants Union, Inc.,
42 Ohio St. 2d 242, 327 N.E.2d 753 (1975), is instructive. In that case, the plaintiff,
a landlord, alleged that the defendant, a tenant-organization, had compiled and
published a list of landlords about whom defendant had received the most
complaints. The plaintiff alleged that the list contained false and defamatory
information about him. The plaintiff’s complaint requested various forms of
injunctive relief that would enjoin the defendant from disseminating allegedly
defamatory information in the future. The trial court dismissed the complaint
because the plaintiff “had not ‘met the heavy burden of justifying prior restraint.’ ”
Id. at 244. The court of appeals reversed, determining that if the trial court found
the defendant’s statements to be defamatory, “then the question whether defendant
should be enjoined from future repetition of the same statements could properly be
before the court.” Id. at 245.
{¶ 43} We affirmed the judgment of the court of appeals in O’Brien, stating:
Once speech has judicially been found libelous, if all the
requirements for injunctive relief are met, an injunction for restraint
of continued publication of that same speech may be proper. The
judicial determination that specific speech is defamatory must be
made prior to any restraint. Curtis Publishing Co. v. Butts (1967),
388 U.S. 130, 149 [87 S. Ct. 1975, 18 L. Ed. 2d 1094].
In an analogous area, dealing with obscene materials, the
United States Supreme Court, in Southeastern Promotions v.
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Conrad [420 U.S. 546, 558-559, 95 S. Ct. 1239, 43 L. Ed. 2d 448
(1975)], said:
“* * * The presumption against prior restraints is heavier—
and the degree of protection broader—than that against limits on
expression imposed by criminal penalties. Behind the distinction is
a theory deeply etched in our law: a free society prefers to punish
the few who abuse rights of speech after they break the law than to
throttle them and all others beforehand. It is always difficult to
know in advance what an individual will say, and the line between
legitimate and illegitimate speech is often so finely drawn that the
risks of freewheeling censorship are formidable. See Speiser v.
Randall, 357 U.S. 513 (1958) [78 S. Ct. 1332, 2 L. Ed. 2d 1460].”
Speaking of allowable remedies available, that same court,
in Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 437, [77
S. Ct. 1325, 1 L. Ed. 2d 1469,] said:
“* * * ‘limited injunctive remedy,’ under closely defined
procedural safeguards, against the sale and distribution of written
and printed matter found after due trial to be obscene [may be
allowed] * * *.” (Emphasis added.)
Id. at 245-246.
{¶ 44} Because the plaintiff’s complaint in O’Brien sought to prospectively
enjoin further publication of allegedly defamatory information, we held that such
relief could be awarded if the plaintiff’s allegations—“that files of a false and
defamatory nature are being used to coerce the public into refusing to rent from
him”—could be substantiated. Id. at 246. Thus, O’Brien confirms that before a
court may enjoin the future publication of allegedly defamatory statements based
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on their content, there must first be a judicial determination that the subject
statements were in fact defamatory. Id.
{¶ 45} In the case before us, however, there has been no such judicial
determination that future postings by Rasawehr will be an integral means to
criminal conduct and thus unprotected by the First Amendment.
{¶ 46} Even if the trial court here determined solely for purposes of civil
protection that Rasawehr violated R.C. 2903.211(A), there has been no valid
judicial determination that any future expression Rasawehr might make to others
through posted messages would necessarily be integral to the criminal conduct of
menacing by stalking in violation of R.C. 2903.211(A). Even if past speech that
an offender made to a person that the offender knew would cause that person to
believe that the offender would cause physical harm to that person or would cause
mental distress to that person could be considered speech that was integral to the
criminal conduct of menacing by stalking, we do not believe that this principle may
be applied categorically to future speech—that is by its nature uncertain and
unknowable—directed to others.
{¶ 47} Because of the uncertainty inherent in evaluating future speech that
has yet to be expressed, the record here cannot justify a content-based prior restraint
on speech when there has been no valid judicial determination that such speech will
be integral to criminal conduct, defamatory, or otherwise subject to lawful
regulation based on its content.
{¶ 48} When it comes to speech, the application of a criminal law should
generally occur after the contested speech takes place, not before it is even uttered.
As observed by the United States Supreme Court in Carroll v. President &
Commrs. of Princess Anne, 393 U.S. 175, 180-181, 89 S. Ct. 347, 21 L. Ed. 2d 325
(1968),
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Ordinarily, the State’s constitutionally permissible interests are
adequately served by criminal penalties imposed after freedom to
speak has been so grossly abused that its immunity is breached. The
impact and consequences of subsequent punishment for such abuse
are materially different from those of prior restraint. Prior restraint
upon speech suppresses the precise freedom which the First
Amendment sought to protect against abridgement.
{¶ 49} For their part, appellees rely on federal-court decisions that have
upheld the constitutionality of the federal stalking statute, 18 U.S.C. 2261A.4 See
United States v. Gonzalez, 905 F.3d 165 (3d Cir.2018); United States v. Osinger,
753 F.3d 939 (9th Cir.2014); United States v. Sayer, 748 F.3d 425 (1st Cir.2014);
United States v. Petrovic, 701 F.3d 849 (8th Cir.2012). But those decisions are
inapposite here inasmuch as they involved prosecutions and convictions under that
federal statute for past speech that was integral to the course of criminal conduct.
By contrast, there has been no criminal prosecution and conviction of Rasawehr for
having engaged in menacing by stalking in violation of R.C. 2903.211 or any other
offenses relating to his statements about appellees. More importantly, none of those
cases involved prior restraints on future speech like those imposed here by
paragraph nine.
4. 18 U.S.C. 2261A(2) prohibits whoever
with the intent to kill, injure, harass, intimidate, or place under surveillance with
intent to kill, injure, harass, or intimidate another person, uses the mail, any
interactive computer service or electronic communication service or electronic
communication system of interstate commerce, or any other facility of interstate
or foreign commerce, to engage in a course of conduct that—
(A) places that person in reasonable fear of the death of or serious bodily
injury to a person * * * or
(B) causes, attempts to cause, or would be reasonably expected to cause
substantial emotional distress to a person * * *.
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{¶ 50} Because there was no valid judicial determination that any future
Internet postings that Rasawehr might make about appellees would necessarily be
integral to the criminal conduct of menacing by stalking in violation of R.C.
2903.211(A), or that such postings would be defamatory or otherwise proscribable,
that future expression would not be excluded categorically from First Amendment
protection. The trial court’s CSPOs thus represent prior restraints that are
unconstitutional unless they can survive strict scrutiny. See Toledo Blade Co., 125
Ohio St. 3d 149, 2010-Ohio-1533, 926 N.E.2d 634, at ¶ 21.
C. Application of strict scrutiny
{¶ 51} A content-based regulation of protected speech cannot be sustained
unless it is the least restrictive means to achieve a compelling state interest. See
Reed, __ U.S. __, 135 S.Ct. at 2231, 192 L. Ed. 2d 236; McCullen, 573 U.S. at 478,
134 S. Ct. 2518, 189 L. Ed. 2d 502; Playboy Entertainment Group, Inc., 529 U.S. at
813, 120 S. Ct. 1878, 146 L. Ed. 2d 865; Sable Communications of California, Inc.,
492 U.S. at 126, 109 S. Ct. 2829, 106 L. Ed. 2d 93. Assuming, without deciding, that
there is a compelling state interest in protecting civil-stalking victims from fear of
imminent physical harm or mental distress, the means chosen here are not the least
restrictive. The scope of paragraph nine, which prohibits Rasawehr from posting
anything about appellees is remarkable. It has no defined limits. Anything that
Rasawehr might ever post about appellees, no matter how innocuous, would
conceivably subject him to proceedings for contempt of court if not criminal
prosecution under R.C. 2919.27 for violating the CSPO. By any measure, this
regulation of speech is demonstrably overbroad.
{¶ 52} In Flood v. Wilk, 430 Ill. Dec. 96, 2019 IL App (1st) 172792, 125
N.E.3d 1114, 1116-1117 (2019), the pastor of a church obtained a “stalking no
contact order” that, among other things, prevented the respondent from
“communicating, publishing or communicating, in any form any writing naming or
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regarding [the pastor], his family or any employee, staff or member” of the pastor’s
church congregation. Vacating that part of the order, the appellate court stated:
Since the trial court’s order in the instant case targeted respondent’s
speech based on its subject matter—the church or its members—it
would be considered a content-based restriction and presumptively
prohibited. An injunction that prohibits respondent from writing
anything at all about his pastor or any other member of his church
congregation—whether flattering or unflattering, fact or opinion,
innocuous or significant, and regardless of the medium of
communication—certainly would not be that rare case that survives
strict scrutiny. It is all but impossible to imagine a factual record
that would justify this blanket restriction on respondent’s speech.
Paragraph (b)(5) of the order is substantially and obviously
overbroad, and it violates respondent’s first-amendment right to free
speech.
(Emphasis sic.) Id. at 1126.
{¶ 53} Not unlike the order in Flood that prohibited the respondent from
writing anything about the pastor or any employee or member of the church, the
orders issued here prohibited Rasawehr from writing anything about appellees “on
any social media service, website, discussion board, or similar outlet or service.”
Nothing in the record before us justifies such an utterly sweeping restriction on
First Amendment expression. Nor does it justify the attempt to limit its censorship
to postings about the deaths of appellees’ husbands or appellees’ alleged culpability
in their husbands’ deaths.
{¶ 54} Appellees maintain that paragraph nine was narrowly tailored to
limit the exercise of free speech to only the degree necessary to achieve the
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compelling state interest of protecting them from “stalking and harassment” and
that no less restrictive alternative would be as effective. But we fail to see how an
order that prohibits Rasawehr from posting anything about appellees either protects
them from certain mental distress or prohibits only distress-causing speech. To the
contrary, it prohibits everything. And while the restraint on postings about
appellees concerning their alleged culpability in the deaths of their husbands bears
at least some factual relation to the allegations contained in their petitions, it suffers
from the same fatal flaw by suppressing all expression about that topic regardless
of whether it causes mental distress cognizable under R.C. 2903.211(D)(2)(a) and
(b). Neither the trial court nor the court of appeals made these First Amendment
sensitive determinations in this case.
{¶ 55} We by no means discount any mental distress and embarrassment
that appellees experienced, nor do we doubt that future statements may cause
additional mental anguish. But speech does not lose its protected character simply
because it may be upsetting and cause distress or embarrassment. See Snyder v.
Phelps, 562 U.S. 443, 458, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011) (antimilitary
and homophobic statements near funeral for serviceman killed in action was
protected despite jury’s finding that it was “outrageous” as an element of intentional
infliction of emotional distress); Natl. Assn. for the Advancement of Colored People
v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S. Ct. 3409, 73 L. Ed. 2d 1215
(1982) (“Speech does not lose its protected character * * * simply because it may
embarrass others or coerce them into action”).
{¶ 56} Moreover, appellees are not without civil tort remedies to redress
any cognizable injuries they claim to have suffered as a result of Rasawehr’s
statements about them, including but not necessarily limited to actions for
defamation. But the special statutory process to provide expedited civil relief to
stalking victims under R.C. 2903.214 serves primarily to protect victims from
imminent threats of physical harm and mental distress. It is not designed to be a
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shortcut or substitute for conventional civil remedies and thus is not the appropriate
means to obtain the panoply of monetary damages and injunctive relief that may
properly be awarded through such proceedings. In any case, the potential abuse of
speech rights in the future cannot justify the blanket prohibition imposed here on
Rasawehr’s speech before it has even been uttered.
{¶ 57} Here, the court of appeals observed that “not all speech is of equal
First Amendment importance,” 2019-Ohio-57, at ¶ 41, and that “[i]t is speech on
‘ “matters of public concern” ’ that is ‘at the heart of the First Amendment’s
protection,’ ” id., quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472
U.S. 749, 758-759, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985), quoting First Natl. Bank
of Boston v. Bellotti, 435 U.S. 765, 776, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978),
citing Thornhill v. Alabama, 310 U.S. 88, 101, 60 S. Ct. 736, 84 L.Ed 1093 (1940).
Appellees similarly maintain, in defending the CSPOs under strict scrutiny, that the
value of Rasawehr’s speech concerning private matters is “decidedly low” when
balanced against the interest in upholding the CSPOs. They rely on Snyder, in
which the United States Supreme Court reviewed a jury verdict that held a church
and its leaders liable for the emotional distress caused by their protest using
antimilitary statements and homophobic slurs near an American serviceman’s
funeral. The court ruled that “[w]hether the First Amendment prohibits holding
[the church] liable for its speech in this case turns largely on whether that speech is
of public or private concern, as determined by all the circumstances of the case.”
Id. at 451. Because the speech at issue in Snyder involved matters of public
concern, to include “the political and moral conduct of the United States and its
citizens” and “homosexuality in the military,” id. at 454, it was “entitled to ‘special
protection’ ” and the court set aside the jury’s verdict against the church, id. at 458-
459.
{¶ 58} In their brief to this court, appellees claim that in contrast to Snyder,
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Rasawehr’s speech (1) consists of a barrage of personal attacks
blended with just enough public criticism to create an illusion of
public debate; (2) is, by Rasawehr’s own admission, motivated by a
personal grudge against his family evidenced by the content of his
writings; and (3) did not take place on a public street.
As appellees must concede, however, Rasawehr’s statements purported to implicate
local public officials in an alleged criminal conspiracy. The United States Supreme
Court has said that “ ‘speech on public issues occupies the highest rung of the
hierarchy of First Amendment values, and is entitled to special protection.’ ”
Snyder, 562 U.S. at 452, 131 S. Ct. 1207, 179 L. Ed. 2d 172, quoting Connick v.
Myers, 461 U.S. 138, 145, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). Such speech is
protected by the First Amendment even though the speaker or writer was motivated
by hatred or ill-will. See Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S. Ct.
876, 99 L. Ed. 2d 41 (1988) (“while * * * a bad motive may be deemed controlling
for purposes of tort liability in other areas of the law, we think the First Amendment
prohibits such a result in the area of public debate about public figures”); see also
Garrison v. Louisiana, 379 U.S. 64, 73, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964).
{¶ 59} In any case, our role here is not to pass judgment on the truth,
plausibility, or First Amendment value of Rasawehr’s allegations. To the extent
his statements involve matters of both private and public concern, we cannot
discount the First Amendment protection afforded to that expression. We most
assuredly have no license to recognize some new category of unprotected speech
based on its supposed value. Rejecting such a “free-floating test for First
Amendment coverage,” the United States Supreme Court declared in Stevens, 559
U.S. at 470, 130 S. Ct. 1577, 176 L. Ed. 2d 435, that the First Amendment’s
guarantee of free speech “does not extend only to categories of speech that survive
an ad hoc balancing of relative social costs and benefits.” “Our decisions * * *
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cannot be taken as establishing a freewheeling authority to declare new categories
of speech outside the scope of the First Amendment.” Id. at 472.
{¶ 60} Prior restraints on First Amendment expression are presumptively
unconstitutional. Because paragraph nine of the CSPOs is content based and does
not survive strict scrutiny, we hereby vacate those portions of paragraph nine that
enjoin Rasawehr from future postings about appellees or that express, imply, or
suggest that appellees were culpable in the deaths of their husbands.
IV. CONCLUSION
{¶ 61} The CSPOs issued here undoubtedly sought to provide some
measure of relief to appellees for the mental distress they experienced because of
Rasawehr’s public accusations. But the means chosen to provide that relief—with
its virtually unlimited restraint on the content of future postings about appellees—
went far beyond anything that the factual record before us can sustain and the First
Amendment can tolerate. We therefore reverse the judgment of the Third District
Court of Appeals to the extent that it upheld the trial court’s CSPOs enjoining future
postings about appellees or postings that express, imply, or suggest that appellees
were culpable in the deaths of their husbands, and we vacate those provisions of
paragraph nine that prohibited such future postings and remand this matter to the
trial court for further proceedings consistent with this opinion.
Judgment reversed in part
and cause remanded.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and
STEWART, JJ., concur.
_________________
Miltner Reed, L.L.C., Ryan K. Miltner, and Kristine H. Reed, for appellees.
Sawan & Sawan, L.L.C., and Dennis E. Sawan, for appellant.
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Legal Aid Society of Cleveland, Alexandria M. Ruden, Haley K. Martinelli,
and Tonya D. Whitsett; and Micaela C. Deming, urging affirmance for amici curiae
Legal Aid Society of Cleveland and Ohio Domestic Violence Network.
Scott & Cyan Banister First Amendment Clinic, UCLA School of Law and
Eugene Volokh; and Law Office of Karin L. Coble and Karin L. Coble, urging
reversal for amici curiae Electronic Frontier Foundation, 1851 Center for
Constitutional Law, and Professors Jonathan Entin, David F. Forte, Andrew
Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret
Tarkington, Aaron H. Caplan, and Eugene Volokh.
Fritz Byers, urging reversal for amicus curiae Block Communications, Inc.
_________________
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