A single hand gesture by a Cincinnati police officer led to a lawsuit against more than 20 individuals, whom the officer claims are attempting to “dox” him online. The suit prompted four separate appeals to the Ohio Supreme Court.

At a city council-hosted forum in response to public protests regarding race and policing in 2020, a Cincinnati police officer assigned to crowd control made the “OK” hand gesture, touching his thumb and index finger. He claims the gesture was in response to a question about the status of another officer.

Julie Niesen and Terhas White were among several citizens attending the council meeting. Niesen, White, and others interpreted the symbol as gesture used by white supremacists.

The two women and others posted comments on social media indicating the officer, whose name wasn’t identified at the time, was a white supremacist, a racist, and was using the gesture to intimidate members of the forum crowd.

The day after the council meeting, White submitted a formal complaint against the officer with the Citizen Complaint Authority, a city agency that receives and investigates complaints against Cincinnati police officers. On social media, another protestor threatened to publish personal identifying information about the officer, an act known as doxing.

Officer Sues Protestors Under a Pseudonym
The officer filed a lawsuit in Hamilton County Common Pleas Court against Niesen, White, and several other named and unnamed defendants, claiming, among other things, defamation and invasion of privacy. He requested permission from the court to proceed anonymously under the pseudonym “M.R.,” and indicated he was an officer assigned to the department’s Violent Crimes Squad and was a member of the Gang Unit and SWAT team.

M.R. claimed the protestors were attempting to dox him by publishing his name, address, and other personal information online. He maintained that the current anti-police climate and the threats made to him on social media made him fear for the safety of himself and his family.

The trial court granted him the right to proceed under the initials M.R. and to seal an affidavit he submitted with the reasons supporting his need to remain anonymous. The trial court granted the officer’s request for a temporary restraining order (TRO) preventing the protestors from publishing identifying information about him.

Appeals Court Rejects Case
Niesen and White appealed the trial court’s ruling, arguing a TRO constitutes an unconstitutional “prior restraint” on their First Amendment right to free speech.

The First District ruled that a TRO isn’t a final appealable order and dismissed the case. The appellate court ruled it was without jurisdiction to consider the matter unless the order was an injunction, which the trial court had not yet imposed. The women appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

Sealing Ruling Generates Lawsuits Against Judge
As the protestors contested the right to limit the information they could share, the news media and free-speech advocates challenged the trial court’s ability to allow a public official to remain anonymous while suing private citizens.

The Cincinnati Enquirer soon learned about the anonymously filed case and covered the court proceedings. The case also drew the attention of Eugene Volokh, a law professor from the University of California, Los Angeles. Volokh leads the First Amendment amicus brief clinic at UCLA School of Law and is author of the textbook “The First Amendment and Related Statutes.”

The newspaper and the professor filed separate motions to compel Hamilton County Common Pleas Court Judge Megan Shanahan to lift her orders allowing the officer to pursue his lawsuit anonymously. The Enquirer and Volokh also objected to the court’s decision to seal the officer’s affidavit that explained his reasoning for seeking anonymity.

Judge Shanahan modified the sealing order, requiring M.R. to submit a redacted version of the affidavit that provided some information the Enquirer and Volokh sought. The newspaper and the professor each requested writs from the First District compelling the trial court to release the unredacted version of the affidavit and to prevent the court from allowing the officer to move forward with the case under the pseudonym.

The First District determined the cases were moot since the trial court modified the order. In opposition to the writs, the trial court noted that during the defamation lawsuit proceedings, the Enquirer was able to identify the officer and published articles that named the officer.

The Enquirer and Volokh filed three separate appeals of the First District’s decisions. The Enquirer and Volokh each appealed the writs denied by the First District. Volokh filed a second appeal, arguing the First District didn’t follow the proper process to conclude the issue was moot.

The Supreme Court consolidated the three writ cases, State ex rel. Cincinnati Enquirer and Volokh v. Shanahan for oral arguments, which will take place immediately after the Court hears M.R. v. Niesen when it meets in Columbus for a two-day session on Nov. 9-10. Two other cases will be heard Nov. 9 after the four cases involving the M.R. lawsuit. The Court will hear three more cases Nov. 10. Oral arguments begin each day at 9 a.m.

Oral Argument Details
The arguments will be 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, Nov. 9
A mother pled no contest to rape and burglary in Highland County for recording sexual activity with her 2-year-old and sending the video to her boyfriend. In State v. Smith, the mother explains that one must engage in “sexual conduct,” as defined in state law, for a rape conviction. She maintains that her actions didn’t constitute sexual conduct, so she couldn’t be convicted for rape. The prosecutor contends that the mother instructed her son to do something sexual to her that falls within the meaning of sexual conduct in the rape statute.

A Greene County probate court judge faces a six-month suspension without pay because he grilled an unsuspecting man on the witness stand after the man publicly questioned whether the judge should preside over cases in which his daughter represents a party in the matter. The man’s mother had died, and the judge’s daughter represented the estate. The man acknowledged he signed a waiver, stating he believed the judge could be impartial, and he didn’t publicly state any displeasure with the probate court process. However, at a county commission meeting he questioned whether it was ethical for the judge to oversee cases involving his daughter, who is an owner of the judge’s former law firm. In Disciplinary Counsel v. O’Diam, the judge admits lashing out at the man was wrong, but believes that he deserves a public reprimand and not time off the bench.

Wednesday, Nov. 10
A man who was housesitting for a North Canton couple in June 2017 killed them when they returned home from their vacation. He waived his right to a jury trial, pled guilty to six offenses, and was sentenced to death. Among the 13 legal issues the man raises in State v. Brinkman, he accuses the Stark County prosecutor of misconduct during the trial, suggesting in part that the prosecutor ascribed a motive to the murders that wasn’t part of the stipulated facts. He also argues a doctor should have testified about the effect that increased medications might have had on his behavior. The prosecutor describes the state’s leeway in making its arguments and maintains that the defense lawyers presented many mitigating factors.

In 2018, the Williams County sheriff was frustrated by the work of the area’s children services agency, and he posted on his office’s website a report of more than 600 pages about cases involving children. A few documents revealed confidential information, and the sheriff was convicted for the unauthorized disclosures. The former sheriff argues in City of Bryan v. Towns that the allegations first had to be considered by the state ethics commission before any criminal charges could be filed in court. The city counters that possible ethics violations by public officials can proceed in two ways – the commission can review the allegations, or a prosecutor can independently investigate and file charges.

Following a woman’s death, one of her sisters and her sister’s husband adopted the woman’s three children. The woman’s other sister – the children’s aunt – stated she was cut off from the children in 2019, and she sued in Summit County for the right to see them. In Davis v. Nathaniel, the aunt rejects the appeals court’s view that she no longer has the right to ask a court for companionship with the children. She argues the children still have the same maternal relatives they had before their mother’s death, and she is entitled to continued contact with them. The adoptive parents respond that it is their fundamental right to decide how to parent their children.