Ohio Supreme Court Rolls Back Awful Rulings, Says Cop Must Use His Real Name If He Wants To Keep His Defamation Suit Going

Legal Issues

from the bringing-back-the-First-Amendment-to-Judge-Shanahan's-courtroom dept

All the way back in August 2020, a Cincinnati (OH) police officer decided to sue some fellow citizens for defamation. The cop went after the authors of social media posts claiming the officer flashed a “white supremacist sign” during a city council meeting discussing concerns raised by the Black Lives Matter movement. These posts also opined that the officer was a racist and that his Facebook profile was filled with bigoted posts and anti-BLM content.

The police officer chose to sue under the pseudonym “M.R.,” claiming that revealing his real name would place him in danger. The court agreed to let him do this, despite those being sued having already figured out who “M.R.” really was: Officer Ryan Olthaus. Olthaus’ Facebook account is run under the name “Mitchell Ryan,” a.k.a., “M.R.” Other corroborating evidence was provided by Olthaus himself in his lawsuit, which stated that some of the people he was suing had filed complaints against him. It didn’t take long to connect those dots using public records.

Despite his identity already being exposed and his defamation suit still in the early pleading stages, the court agreed to protect his (already known) identity, seal his sworn affidavit, and forbid any of the defendants from posting anything about M.R. online — defamatory or not — if these posts contained the officer’s real name: Ryan Olthaus.

A year later, Olthaus and his lawyer were back in court trying to keep documents from being unsealed and the prior restraint issued from the judge from being rolled back by the defendants and several other interested parties (like local lawyer Jeffrey Nye, the Cincinnati Enquirer, and Eugene Volokh) who were challenging the constitutionality of the clearly unconstitutional orders issued by the judge.

Finally — nearly six months after this appeal — a decision [PDF] has been handed down. And it’s a win for the First Amendment and a loss for Officer Ryan Olthaus, who still deeply desires everyone to keep pretending they don’t know it’s him hiding behind the “M.R.” pseudonym. (h/t Jeffrey Nye)

Here’s the summary of the Ohio Supreme Court’s decision, which makes it clear that if the officer wishes to keep litigating, he’s going to have to do it under his own name and with all his litigation cards on the table.

Mandamus—Prohibition—Writs sought to compel a judge to grant full access to documents filed in a lawsuit brought by a police officer and to prevent the judge from continuing to permit the police officer to proceed with the lawsuit under a pseudonym—Writs granted.

The Supreme Court says the judge who allowed the sealing of Olthaus’ affidavit and allowed him to proceed pseudonymously was incorrect on both counts. As to the sealing of the affidavit, the judge had no evidence suggesting this was necessary to protect Olthaus from harm.

Judge Shanahan has not shown that the evidence clearly and convincingly justified restricting access to M.R.’s affidavit. To start, the social media post the judge refers to did not express a clear intent to publicize M.R.’s name, address, and phone numbers. The poster posed a question about whether it would be legal for him to release information about M.R. Although the poster left open the possibility that he might release M.R.’s information, he suggested that he would not do so unless he was told that it was legal. Moreover, making M.R.’s affidavit publicly available would not increase the risk that the poster would publish M.R.’s name, address, and phone numbers, because the poster already has that information.

And even if the poster’s statement constituted a genuine threat to publicize M.R.’s information, Judge Shanahan has not shown that the publication would create a risk of injury to M.R. or his family within the meaning of Sup.R. 45(E)(2). See United States v. Cook, 472 F.Supp.3d 326, 335 (N.D.Miss.2020) (discussing “doxing” and concluding that “sharing public information, while potentially offensive and disagreeable, does not rise to the level of a true threat”). Although in her order restricting public access to M.R.’s affidavit Judge Shanahan cited real risks that police officers face, M.R. had not presented any evidence of a threat of physical harm directed at him or his family.

She was also wrong to withhold this document from the public, which has a constitutional right of access.

Judge Shanahan argues that the Enquirer and Volokh have not been harmed by the partial sealing of M.R.’s affidavit, because her courtroom remains open to the public and the Enquirer has published the name of the person it believes to be M.R. The issue, however, is not whether the Enquirer and Volokh have knowledge of M.R.’s identity or whether they can publish his name. The issue is whether documents filed in M.R.’s case are court records that must be accessible to the public. The Enquirer and Volokh do not need to prove that they have been injured to be entitled to relief in mandamus in these cases.

The Enquirer and Volokh have a clear legal right of public access to M.R.’s affidavit, and Judge Shanahan has a clear legal duty to provide that access.

Allowing Officer Olthaus to proceed pseudonymously was also the incorrect call. The officer hadn’t shown that filing the lawsuit under his own name would increase the level of potential harm. Nor did Judge Shanahan find any truly compelling reason for protecting his identity.

Beyond that, Ryan Olthaus had already undermined his own anonymity in his original filing — another factor that weighs against ongoing pseudonymity.

[E]ven if M.R. had identified a threat of harm attributable to the filing of his lawsuit, the weight of his privacy interest diminished significantly when he disclosed in his complaint that on June 25, 2020, Terhas White and Alissa Gilley filed citizen complaints against him with the Citizen Complaint Authority. M.R. acknowledged that those complaints—which disclose his name—are public records. And the Enquirer referred to the citizen complaints when it published four news articles identifying M.R. by name. Thus, M.R. himself did not completely conceal his identity in filing his lawsuit and undermined his claimed right to privacy. In addition, M.R.’s attorney disclosed M.R.’s identity in open court while seeking a civil protection order on behalf of M.R.’s wife.

Judge Shanahan’s argument is perhaps worse than Olthaus’.

Judge Shanahan suggests that the reporting of M.R.’s identity supports the continued use of a pseudonym, because it shows that the Enquirer and Volokh know his identity and have not been harmed. The judge argues that “[t]he only practical effect of [her] order allowing M.R. to proceed pseudonymously is that a member of the public cannot glean his identity with a simple search of the clerk’s website.” 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.

The affidavit is unsealed. The next time Ryan Olthaus submits anything to the court, he’ll have to do it under his own name, rather than the initials borrowed from his violation of Facebook’s real name policy. For the moment, the First Amendment is back in business in Ohio. Now we’ll have to see how the judge that severely mismanaged the entire case up to this point decides to handle the still unanswered questions about alleged defamation. I can’t necessarily say I’m looking forward to it.

Filed Under: accountability, anonymity, cincinnati, cincinnati pd, ohio, police, ryan olthaus, transparency