Bey v. Rasawehr

161 Ohio St.3d 79

161 N.E.3d 529

2020 Ohio 3301

BEY et al., Appellees,

v.RASAWEHR, Appellant.

No. 2019-0295

Supreme Court of Ohio.

Submitted February 11, 2020

Decided June 16, 2020

Miltner Reed, L.L.C., Ryan K. Miltner, and Kristine H. Reed, Waynesfield, for appellees.

Sawan & Sawan, L.L.C., and Dennis E. Sawan, Toledo, for appellant.

Legal Aid Society of Cleveland, Alexandria M. Ruden, Haley K. Martinelli, and Tonya D. Whitsett, Cleveland; 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, Toledo, 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, Toledo, urging reversal for amicus curiae Block Communications, Inc.

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 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 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, 2019 WL 182418, ¶ 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).

{¶ 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 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:

(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, 2017 WL 277518, ¶ 28, quoting Oliver v. Johnson , 4th Dist. Jackson No. 06CA16, 2007-Ohio-5880, 2007 WL 3227668, ¶ 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, 2006 WL 832830, ¶ 15. 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) ;...