The Ohio Supreme Court today vacated portions of Mercer County civil stalking protection orders  that prohibited a man from posting anything on social media about his mother and sister, whom he accused of contributing to the deaths of their husbands.

In a unanimous decision, the Supreme Court ruled the complete ban on commenting about the two women was a prior restraint on free speech that violates the U.S. Constitution’s First Amendment.

Writing for the Court, Justice Michael P. Donnelly said the ban was remarkable in its scope and “went far beyond anything that the factual record before us could sustain and the First Amendment can tolerate."

The 7-0 decision reversed the Third District Court of Appeals, which upheld 2018 protection orders granted to Joni Bey and Rebecca Rasawehr. The women claimed that Jeffrey Rasawehr’s internet postings caused them mental distress and made them fear for their safety. Jeffrey Rasawehr did not contest the entire civil stalking protection orders (CSPOs), but rather two provisions banning him from posting about his mother, Rebecca, or sister, Joni by insinuating they were responsible for their husbands’ deaths.

Billboard, Social Media Posts Criticize County Officials, Women
In November 2015, Bey’s husband died. About seven months later, her brother began posting comments on craigslist.org and the Lima News website accusing Bey of contributing to her husband’s death and accusing local officials in Mercer County of failing to investigate the circumstances of his death.

Around the same time, Rasawehr began making similar comments about his mother, Rebecca. Rasawehr’s father died in 2008. In June 2016, Rasawehr authored internet postings accusing his mother of contributing to the death of his father, and again accusing local officials of failing to investigate that death.

In September 2017, a billboard near Bey’s home featured a large picture of Rasawehr with the message, “Jeff Rasawehr says, ‘LEARN ABOUT COUNTY CORRUPTION & COVER-UPS AT…CountyCoverUp.com.’”  The website contains postings by Rasawehr reiterating his accusations about the two women and county officials.

Women Seek Protection
Citing R.C. 2903.214, the women sought CSPOs from the Mercer County Common Pleas Court in November 2017. The two explained their concerns at a hearing and expressed fear and mental distress caused by Rasawehr’s postings. Rasawehr appeared at the hearing, but invoked his Fifth Amendment right to refuse to answer any questions posed to him.

Using a standard court form, the trial court issued the CSPOs, which prohibited Rasawehr from having any contact with the women, and required him to keep his distance from them and from certain locations. The court then drafted an additional “paragraph nine” to the order requiring Rasawehr to refrain from posting about the women “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” the women.  The order also required he refrain from posting anything about the deaths of their husbands “in any manner that expresses, implies, or suggests” that the women are responsible for the deaths.

Rasawehr appealed the issuance of the CSPOs to the Third District, which found the protection orders were warranted. While the appellate court rejected his contention that the social-media-posting ban violated his First Amendment rights, the court was divided on the issue. One judge found the ban on all comments about the women to be “ambiguous and unenforceable,” while affirming the ban on speaking about the women’s role in the death of their husbands.

Rasawehr appealed to the Ohio Supreme Court, which agreed to address only whether the posting-ban portion of the CSPO was an unconstitutional violation of Rasawehr’s right to free speech. Justice Donnelly noted that Rasawehr did not contest the CSPO’s order that he remove his prior posts about the women.

Stalking Law Explained
The Court’s opinion explains that R.C. 2903.211 prohibits menacing by stalking, including through the use of written communication and social media posting. The state allows those alleging they are being stalked to receive CSPOs under certain circumstances . A person violating the protection order can be charged with a crime under R.C. 2919.27 for violating a protection order or be held in contempt of court. The opinion noted Rasawehr could face criminal prosecution for posting anything about the women.

Justice Donnelly wrote the First Amendment generally allows for punishment of speech after it is published, but not before. The Court noted that the U.S. Supreme Court recognizes several areas of “non-protected” speech, such as defamation, fraud, obscenity, and “fighting words,” that can be restricted by law or court orders.

The women maintained the complete posting ban is valid because it fits an exception known as “speech integral to criminal conduct.” Because the trial court found enough evidence of stalking to issue the CSPOs, then any further comments made by Rasawehr about them was a continuation of the crime of stalking, the women asserted.

Court Reject Blanket Ban
The Court rejected the women’s argument, noting that Rasawehr has not been charged or convicted of stalking. The Court stated there has been no judicial determination that what Rasawehr might say would be integral to criminal conduct.

The Court pointed to its 1975 O’Brien v. Univ. Community Tenants Union Inc. decision, in which a landlord complained that a tenant advocacy group was publishing false and defamatory information about him. While the trial court rejected his request for an injunction to stop the organization from publishing its allegations, the Supreme Court allowed for an injunction that prevented the group from repeating information that had been judicially determined to be defamatory.

Even if some of Rasawehr’s past comments were found to cause mental distress, the justices stated they do not believe the exception for speech integral to criminal conduct can be applied “categorically to future speech — that is by its nature uncertain and unknowable — directed to others.” Speech may not be categorically suppressed absent a judicial determination that it would be unprotected by the First Amendment, the Court stated.

By attempting to protect civil stalking victims by punishing speech integral to criminal conduct, the CSPOs are restricting the content of Rasawehr’s speech, the opinion stated. A court has the right to limit the content of speech in certain circumstances, the opinion noted, but it must do so in the least-restrictive manner possible. Paragraph nine of the CSPOs “has no defined limits,” the opinion stated.

“By any measure, this regulation of speech is demonstrably overbroad,” the Court concluded.

Other Protection from Harassment Available
While striking down the CSPO provision, the Court stated it does not “discount any mental distress and embarrassment” the women experienced, and does not doubt that future statements by Rasawehr “may cause additional mental anguish.” The women can pursue civil lawsuits including, but not limited to, suing for defamation if Rasawehr makes any future false claims about them, the opinion noted.

The Court stated the purpose of the CSPO law is to provide expedited relief to stalking victims “primarily to protect victims from imminent threats of physical harm and mental distress.” But the law is not designed to be a shortcut or substitute for the conventional methods of obtaining injunctions for, or damages from, those violating the orders, the Court concluded.

2019-0295. Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301.

View oral argument video of this case.

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