Court News Ohio
Court News Ohio
Court News Ohio

Stalking Protection Order’s Ban on Internet Posting Draws Freedom of Speech Protest

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Is an online posting ban to a civil stalking protection order an unconstitutional prior restraint on free speech or a legal safeguard against further harassment?

A Mercer County family dispute escalated to a point where a judge issued civil protection orders that banned a man for mentioning his mother and sister in any future social media posting. That act has drawn the attention of free-speech advocates, as well as protectors of domestic violence victims.

The Ohio Supreme Court will consider whether the addition of an online posting ban to a civil stalking protection order (CSPO) is an unconstitutional prior restraint on free speech or a legal safeguard against further harassment by someone already deemed by a court to be stalking his victims. The Court will hear oral arguments Feb. 11-12 in Bey v. Rasawehr and six other cases.

Man Accuses Sister, Mother of Killing Their Husbands
In November 2017, Joni Bey and Rebecca Rasawehr petitioned the Mercer County Common Pleas Court for CSPOs against Jeffrey Rasawehr. At a court hearing, Bey identified nine incidents in which her brother, Jeffrey Rasawehr, allegedly made claims on internet websites and social media outlets that Bey killed her husband or participated in a conspiracy with Mercer County officials to “cover up” the circumstances of her husband’s death. He also purchased a billboard near Bey’s house advertising a website called “countycoverup.com,” which included his photo and stated, “Jeff Rasawehr says, ‘Learn about county corruption & cover-ups at…countycoverup.com.’”

Rasawehr’s mother, Rebecca Rasawehr, identified 14 incidents in which her son claimed she killed her husband, Jeffrey Rasawehr’s father, and she was involved in acts of conspiracy with Mercer County officials to cover up the circumstances of her husband’s death. Both women characterized the behavior as bullying and harassment, and indicated they suffered from distress caused by the episodes. Rasawehr chose not to testify at the hearing, instead invoking his Fifth Amendment right to remain silent.

The trial court found Rasawehr knowingly engaged in a pattern of conduct that caused the women to believe he would cause them physical harm or mental distress. In addition to standard orders to physically keep his distance from the women for five years, the CSPOs included an additional order stating that Jeffrey Rasawehr couldn’t post anything online related to the women and must take down postings on countycoverup.com.

Rasawehr appealed the CSPOs to the Third District Court of Appeals, alleging the additional written restrictions were a prior restraint on his right to free speech, which was protected by the U.S. and Ohio constitutions. The appeals court affirmed the trial court’s decisions, and Rasawehr appealed the decision to the Ohio Supreme Court on several grounds. The Court agreed to consider one argument — whether the additional language regarding future online postings is an unconstitutional prior restraint on free speech.

Case Draws National Attention
The case has drawn state and national attention from advocates for free speech who are participating through the filing of amicus curiae briefs. The Electronic Frontier Foundation, along with others, argue that a CSPO banning a man from posting any accusations on social media about his mother and sister could set a dangerous precedent. It could allow a court to block future speech by “anyone who sharply and repeatedly criticizes others – whether government officials, businesspeople, or as here, family members.” Domestic violence victim advocates counter that “any ban on the use of protective orders to prevent future abusive, harassing and stalking conduct would eviscerate the purposes and intent of all civil protection orders in the state of Ohio.”

Oral Argument Details
The case is one of four cases the Court will consider on Feb. 11. The Court will hear another three appeals on Feb. 12. Oral arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, Feb. 11
At a man’s trial for a misdemeanor in Hamilton County, the prosecutor exercised a peremptory challenge to a juror after the main jury had been selected. The man argues in State v. Jones that the late challenge “unfairly skewed the trial process in favor of the state” and violated his constitutional rights. The prosecutor responds that there’s no constitutional right to peremptory challenges and the man didn’t show the court’s mistake changed the outcome of the trial. The Supreme Court will consider a conflict between appellate courts on this issue.

In divorce proceedings, a Lake County husband and wife each requested custody of their minor children, and the wife asked for spousal support. The husband sought the release of all of his spouse’s medical records, including mental health records. The wife tried to quash subpoenas issued for the records, citing physician-patient privilege and psychologist-patient privilege. In Friedenberg v. Friedenberg, the Court will consider if those requesting custody and spousal support place their physical and mental conditions at issue and waive their rights to the privileges, or whether the records can be released only if there is proof they are relevant to the case.

In Litchfield Township v. Forever Blueberry Barn, the township maintains that a 4,500-square-foot barn on 33 acres in a residential district is used primarily as an event space and is subject to zoning regulations. The owner contends the property is being used for viticulture and a state law exempts agricultural uses from township zoning regulations. The owner also argues the barn meets the state law’s additional description of what’s exempt – the barn will be used primarily for producing, selling, and marketing wine.

Wednesday, Feb. 12
A man was convicted and sentenced to death for the 2015 murder of a disabled Youngstown woman who was his roommate. He also was found guilty of the attempted murder of the woman’s mother and for arson involving setting the roommate’s body and her house on fire. In State v. Hundley, the man’s automatic appeal to the Court, he asserts the state didn’t prove he committed murder with prior calculation and design. The man also represented himself during parts of his trial, and the appeal argues the man has a mental-health disorder that should have prevented the trial court from allowing him to handle parts of his trial without lawyers.

In February 2015, a Clark County man was indicted on 10 charges related to an attempted robbery, and he agreed to plead guilty to three charges. He was sentenced to 11 years in prison. His sentence was reversed on appeal in March 2016, and he requested a new trial, which wasn’t scheduled until September 2016. A week before the trial, the man requested that the case be dismissed , arguing he was denied his right to a speedy trial. The trial court denied the motion and the case was delayed until September 2017. He then pleaded guilty to fewer charges that resulted in five years in prison. In State v. Long, the Court will consider whether a nearly 500-day wait in jail since the case was remanded constitutes a violation of the man’s speedy trial rights, and warrants the dismissal of the charges against him.

State v. Henderson involves a murder sentence of 15 years that should have been 15 years to life. Within days of the defendant’s release date, the Cuyahoga County prosecutor filed a motion to address the incorrect 15-year “flat” sentence, and the trial court resentenced the man to 15 years to life. The man argues that reading a state law to mean the “life tail” is automatically part of his sentence regardless of the court’s mistake during his sentencing violates his rights to due process and against double jeopardy. The prosecutor counters that the sentence of 15 years to life is mandated by statute even when a court imposes the wrong sentence.