Can an officer in Cincinnati called racist sue anonymously for libel?

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The Ohio Supreme Court heard arguments on Tuesday over whether a Cincinnati police officer can remain anonymous in a libel lawsuit he filed against several people who called him racist.

The case raises general questions about open government, free speech, public accountability and a hot political climate.

The legal fight stems from a hand gesture by Cincinnati Police Officer Ryan Olthaus at a city council meeting in June 2020, just as protests over George Floyd’s death swept the nation . Some saw the gesture as a message of white power. Olthaus sued those who accused him of being a racist.

During the trial, the lower court allowed him to proceed under a pseudonym and prevented the defendants from publicly identifying Olthaus.

Questions on the First Amendment

The High Court heard arguments on two related cases on Tuesday.

First, if Cincinnati Police Officer Ryan Olthaus can remain anonymous in court records to protect him from “doxing” – the practice of publicly naming and humiliating someone for supposedly negative statements or behavior . Second, whether a court order in the case placed unwarranted limits on freedom of expression.

“Can a court say that when you criticize a government official, you cannot use the person’s name?” And our answer is no, ”wrote Eugene Volokh, professor of law at UCLA, who filed an amicus brief on behalf of media organizations, freedom of expression groups. and professors of constitutional law.

Pamela Sears, assistant prosecutor for Hamilton County, argued that the court orders in the case banning social media posts and allowing Olthaus to file under a pseudonym had been carefully and narrowly crafted. The orders protect the officer from negative retaliation, she said.

Olthaus’s name has been published by newspapers and can be found via a Google search. But in court documents he is identified as “MR”

Judge Patrick DeWine said: “I guess I’m a little puzzled as to how an order ignores a trial which is publicly available information, how much of a public interest there is in it. to do.”

The Ohio Supreme Court decisions are not expected for several months.

How the affair started

The legal battle began in June 2020 at a Cincinnati City Council meeting where Officer Olthaus made the “OK” symbol.

Olthaus said he meant OK when he flashed the hand signal, but others considered it a dog whistle for white supremacy because the shape of the hand resembles the letters W and P for “white power”.

In August, Olthaus sued Terhas White, local writer Julie Niesen and others who accused him of racism. The lawsuit says his privacy has been “tortured”, that people have posted personal information about him online and that he has been defamed.

“People in the crowd made the juvenile, unfounded, incorrect and hysterical claim that the innocuous gesture of ‘okay’ (by the officer) was a ‘white power’ or ‘white supremacist’ hand sign intended for intimidate people, ”the lawsuit said.

Zach Gottesman, who represents Olthaus, said Cincinnati Police Intelligence found posts on social media in which people spoke of taking “concrete action to harm him and his family.”

Hamilton County Common Plea Judge Megan Shanahan agreed to allow Olthaus to continue his case under a pseudonym: The initials MR Shanahan also approved a temporary restraining order prohibiting Neisen and White from disclosing personal information on the officer.

What the accused say

Jennifer Kinsley, who represents White and another accused, argued that any order from a judge restricting her client’s freedom of expression should have been reviewed immediately by a higher court.

“There has to be an immediate review on appeal,” Kinsley said. “My client has never had that second look.”

She said part of the issue in the Ohio Supreme Court was whether her client’s speech was constitutionally protected, so their ruling could impact the rest of the case.

The Cincinnati Enquirer has also filed briefs and motions in the case indicating that Olthaus should not be able to continue his case under a pseudonym. Justice Shananan dismissed these motions in August 2020.

The Enquirer made a similar argument in the Ohio Supreme Court, also asking that the records used by the trial court to justify the pseudonym be unsealed.

“We have a long tradition of public access to court records. The Ohio Constitution states that all courts should be open. This is really a fundamental legal principle,” said Jeff Nye, an attorney who filed a amicus brief on behalf of the media, free speech groups and constitutional law professors.

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