The Ohio Supreme Court heard arguments Tuesday on whether a Cincinnati police officer can remain anonymous in a defamation lawsuit he filed against several people who called him racist.
The case raises big picture questions about open government, free speech, public accountability and a hot political climate.
The legal fight stems from a hand gesture flashed 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 viewed the gesture as a message of white power. Olthaus sued those who accused him of being racist.
During the course of the lawsuit, the trial court allowed him to proceed under a pseudonym and blocked defendants from publicly identifying Olthaus.
The high court heard arguments on two related cases Tuesday.
First, whether Cincinnati police officer Ryan Olthaus can remain anonymous in court records to protect him against “doxing” – the practice of publicly naming and shaming someone for so-called negative statements or behaviors. Second, whether a court order in the case put unjustified limits on free speech.
“Can a court say when you’re criticizing a government official you can’t use the person’s name? And our answer is no,” wrote UCLA law professor Eugene Volokh, who filed an amicus brief on behalf of media organizations, free speech groups and constitutional law professors.
Pamela Sears, assistant Hamilton County prosecutor, argued that the court orders in the case prohibiting social media posts and allowing Olthaus to file under a pseudonym were carefully and narrowly crafted. The orders protect the officer against negative retaliation, she said.
Olthaus’ name has been published by newspapers and can be found through a Google search. But in court documents, he is identified as “M.R.”
Justice Patrick DeWine said: “I guess I’m just kind of befuddled how an order keeping a name off of a lawsuit that is publicly available information, how there is any public interest in doing that.”
The Ohio Supreme Court’s decisions aren’t expected for several months.
The legal fight started 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 viewed it as a dog whistle for white supremacy as the shape of the hand resembles the letter W and P for “white power.”
In August, Olthaus sued Terhas White, local writer Julie Niesen and others who accused him of racism. The suit states that his privacy was “tortiously violated,” that people disseminated personal information about him online, and that he was defamed.
“People in the crowd made the juvenile, unfounded, incorrect and hysterical claim that (the officer’s) innocuous ‘okay’ gesture was a ‘white power’ or ‘white supremacist’ hand signal intended to intimidate people,” the suit states.
Zach Gottesman, who represents Olthaus, said Cincinnati police intelligence found messages on social media boards in which people were talking about taking “actual concrete steps to harm him and his family.”
Hamilton County Common Pleas Judge Megan Shanahan agreed to allow Olthaus to proceed with his case under a pseudonym: the initials M.R. Shanahan also approved a temporary restraining order barring Neisen and White from releasing any personal information about the officer.
Jennifer Kinsley, who represents White and one other defendant, argued that any judge’s order restricting the free speech of her client should have been reviewed immediately by a higher court.
“There must be immediate appellate review,” Kinsley said. “My client never got that second look.”
She said part of the question before the Ohio Supreme Court is whether her client’s speech was constitutionally protected, so their decision could impact the rest of the case.
The Cincinnati Enquirer has also filed briefs and motions in the case stating that Olthaus should not be able to proceed with his case under a pseudonym. Judge Shananan denied those motions in August 2020.
The Enquirer made a similar argument before the Ohio Supreme Court, also asking that records used by the trial court to justify the pseudonym should be unsealed.
“We have a long-standing tradition of public access to court records. The Ohio Constitution says all courts shall be open. It’s really a foundational legal principle,” said Jeff Nye, an attorney who filed an amicus brief on behalf of media, free speech groups and constitutional law professors.