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Asking Ohio S. Ct. to Hear Case Involving Prior Restraint on Mentioning Police Officer's Name

Added 09-22-20 08:21:02pm EST - “Our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) has just filed our amicus brief in M.R.” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “Asking Ohio S. Ct. to Hear Case Involving Prior Restraint on Mentioning Police Officer's Name”. Below is an excerpt from the article.

Our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) has just filed our amicus brief in M.R. v. Niesen, on behalf of Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O'Neill, Margaret Christine Tarkington, Aaron H. Caplan, the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group, and me. We're supporting Julie Niesen et al.'s memorandum in support of jurisdiction, and asking the Ohio Supreme Court to consider the question, on which we think the Court of Appeals erred. Here's the heart of our argument:

{The plaintiff, a police officer, sued the defendants, Ohio citizens who criticized his on-duty conduct providing security at a City Council meeting at Cincinnati City Hall. The complaint raised a defamation claim and other similar tort claims. Less than two days after filing the complaint, after a hearing at which the defendant-appellants were present and at which the plaintiff presented no testimony, the court issued an order that "enjoined" the appellants "from publicizing, through social media or other channels, Plaintiff's personal identifying information." The order did not define "personal identifying information," but the only statute that defines the phrase, R.C. 2913.49(A), defines it to include a person's "name."}

Within 48 hours of filing his complaint, [plaintiff] sought and received a sweeping prior restraint: an order forbidding two Ohio citizens from publishing information about a public official arising out the performance of his official duties. That order, like all prior restraints, is presumptively unconstitutional. But when those citizens, Julie Niesen and Terhas White, appealed that order to the First District, the appellate court dismissed the appeal, concluding that there was no final order.

That dismissal was wrong, and there are at least four reasons why this case presents substantial constitutional questions and issues of public or great general interest.

"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." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25 (some quotation marks omitted). "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Id. (quotation marks omitted). "It is inescapable that a regulation of speech 'about' a specific person . . . is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation." Bey at ¶33.

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