2020 Ohio 3301
Ohio2020Background
- After her husband’s 2015 death, Joni Bey (and later Rebecca Rasawehr) were publicly accused online of contributing to their husbands’ deaths; posts appeared on craigslist, a local news site, and CountyCoverUp.com and were promoted by a billboard.
- Appellees filed civil-stalking protection order (CSPO) petitions under R.C. 2903.214 alleging a pattern of conduct causing fear and mental distress; the trial court found a preponderance of evidence and issued CSPOs.
- Paragraph nine of each CSPO (the contested provision) ordered respondent Jeffrey Rasawehr to remove certain prior posts and to "refrain from posting about Petitioners on any social media service, website, discussion board, or similar outlet or service" and to refrain from posting that suggested appellees were culpable in their husbands’ deaths.
- The court of common pleas entered the CSPOs; the Third District Court of Appeals affirmed. Rasawehr appealed to the Ohio Supreme Court raising First Amendment prior-restraint arguments.
- The Ohio Supreme Court held that paragraph nine’s ban on future postings is a content-based prior restraint that lacks the required judicial determination of unprotected speech and fails strict scrutiny; it vacated those portions of paragraph nine and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether enjoining future internet postings about petitioners is a lawful CSPO remedy or an unconstitutional prior restraint | Bey: The injunction is necessary and narrowly tailored to prevent stalking/mental distress and is content-neutral because it targets the victim rather than ideas | Rasawehr: The ban is a content-based prior restraint on protected speech and therefore presumptively invalid and subject to strict scrutiny | Court: The provision is content-based, a prior restraint, and cannot stand; vacated the portions enjoining future postings |
| Whether the "speech integral to criminal conduct" exception permits categorical preclusion of future postings | Bey: Posts are integral to menacing-by-stalking and so may be categorically proscribed (relying on Giboney and federal stalking precedents) | Rasawehr: No judicial finding that future speech would be integral to criminal conduct; prior restraint cannot be imposed absent such a determination | Court: Exception does not apply—no prior judicial finding that future speech would be unprotected; prior restraint requires such a determination or must satisfy strict scrutiny |
| Whether removing prior postings (retroactive takedown) is improper prior restraint | Bey: Removal of existing posts is necessary to prevent ongoing distress | Rasawehr: Did not contest removal provision on appeal | Court: Removal of prior posts was not challenged here and does not present the same prior-restraint problem; court did not disturb the removal order |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (content-based speech regulation triggers strict scrutiny)
- McCullen v. Coakley, 573 U.S. 464 (content/viewpoint analysis and time/place/manner framework)
- New York Times Co. v. United States, 403 U.S. 713 (prior restraints bear heavy presumption against validity)
- Near v. Minnesota ex rel. Olson, 283 U.S. 697 (classic condemnation of prior restraints)
- Organization for a Better Austin v. Keefe, 402 U.S. 415 (injunction suppressing distribution of literature vacated as prior restraint)
- Alexander v. United States, 509 U.S. 544 (definition/discussion of prior restraints)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (speech integral to unlawful conduct may be regulated)
- O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242 (Ohio decision: judicial finding of defamation required before prior restraint on future publication)