There is finally a substantive decision in Olthaus versus Niesenthe case in which I argued in the Supreme Court of Ohio contesting a pre-trial withholding on the publication of the plaintiff’s name by the defendant, and in which my valued pro bono lawyer Jeffrey M. Nye (Stagnaro, Saba & Patterson) argued on my behalf challenge to the plaintiff’s pseudonym and the sealing of his affidavit. Here’s the heart of last week’s opinion from Judge Megan Shanahan in Olthaus versus Niesen:
Following the death of George Floyd, racial tensions were high across our country. In response to public protests against the police in Cincinnati, the Cincinnati City Council has scheduled a series of public meetings in the summer of 2020 to hear from voters. On June 24, 2020, at one such meeting, the plaintiff, a uniformed police officer, was assigned to City Hall to provide policing services, including crowd control and council chambers security municipal.
During this meeting, the plaintiff made a hand signal that has been interpreted by some as a “white supremacist” hand signal. According to the applicant, the hand signal was intended as an “ok” signal in response to a request after a fellow officer who had just left the scene. The following day, via social media and filing a complaint with the Citizens Complaints Authority, the defendants commented on the hand signal and the plaintiff.
The plaintiff sued [for, among other things, defamation -EV] to restrain the defendants from posting derogatory comments about him and to restrain them from posting information about his family. Plaintiff argues that he gave the universal hand signal for “okay” and that defendants misinterpreted the signal as a sign of “white power”. He argues that being branded a white supremacist cop casts him as the worst kind of bad guy in today’s society, damaging his professional and personal reputation and career, and threatening his safety and that of his family. family, colleagues and friends…
Plaintiff states that in the current political atmosphere, Defendants’ statements rise above mere opinion and operate as a statement of fact. An opinion does not become a statement of fact because of the political atmosphere.
The complaint does not allege actual malice on the part of defendant Niesen. He alleges that the defendants’ actions were malicious, but he pleads no facts showing that defendant Niesen made a statement with knowledge of the falsity of the claim or reckless disregard for its truthfulness. Indeed, the statements were either a) true or b) an opinion.
According to the Complaint’s allegations, on June 25, 2020, Defendant Niesen posted a social media post in which she falsely described the Plaintiff as a “white supremacist”, a term that is not likely to be proven true. or wrong. She wrote that the plaintiff used a hand signal that white supremacists use. This statement, as well as the other statements made by the accused Niesen, were true. Defendant Niesen’s message is constitutionally protected speech.
By accepting the factual allegations of the complaint as true, it seems[s] There is no doubt that the plaintiff cannot prove any set of facts justifying a recovery against the defendant Niesen for misrepresentation, invasion of privacy or defamation. With respect to the allegation of negligence/recklessness, the plaintiff alleges that the defendants disseminated information which they knew or should have known to be false. As the Court found that the message was constitutionally protected speech, the negligence/recklessness claim also fails….
The Complaint alleges that Defendant White filed a complaint with the Citizens Complaints Authority on June 25, 2020 and falsely accused Plaintiff of using the “white power” hand sign in the course of his employment. The accusation was not false. The hand sign has been made. The intention behind the hand signal is disputed. Statements critical of public officials in the performance of their official duties may only be prosecuted if they are made with knowledge of their falsity or with reckless disregard for their veracity. Posting that it was the hand signal of “white power” is not liable to prosecution as defamation or a false invasion of privacy.
The complaint also states that Defendant White posted on social media that Plaintiff is a “white supremacist kkkop” and a “shit white supremacist.” As these statements are not verifiable as true or false, they are opinions and are copyrighted words….
According to the Complaint’s allegations, Defendant Noe posted on social media that Plaintiff is a “lame outlet.” [piece of shit]” and a “white supremacist”, and that the plaintiff flashed the “symbol of white power to black speakers.” The first two statements cannot be proven true or false and the third statement, that a hand sign was made by the applicant, is true What was to be transmitted by the hand signal is disputed. But”[h]The only misinterpretation does not amount to actual malice. “There is a basis in fact for Defendant Noe to believe that the hand signal was a white power signal as it has come to be known as such. The language used by Defendant Noe” is loaded with value and represents an obviously subjective point of view.” “It is not enough for [Plaintiff] show that an interpretation of the facts is wrong; rather, it must prove with convincing clarity that [Mr. Noe] was aware of the high probability of falsity.”
The complaint further alleges that Defendant Noe “threatened to publish Plaintiff’s personally identifying information in his social media posts.” As the [Ohio] The Supreme Court noted that defendant Noe did not express a clear intention to make his name, address and telephone number public. He instead wondered if it would be legal to do so and said he wouldn’t do it unless he was told it was legal. Despite the threat to share this information, “although potentially offensive and distasteful”, a claim of invasion of privacy by false lights will not lie. The statement does not cast the plaintiff in a light that would be highly offensive to a reasonable person, nor does the statement reflect that the defendant Noe had knowledge or acted with reckless disregard as to the falsity of the case published and to the false light in which the seeker would be placed….
The complaint alleges that defendant Noe portrayed the plaintiff as a “white supremacist” by posting a “misleadingly altered photo” of the plaintiff on social media. [The supposed deceptive editing wasn’t heavily litigated, and to my knowledge the editing didn’t actually make any factual assertions about Plaintiff. -EV] Again, the Court concludes that labeling a police officer as a “white supremacist” is not subject to prosecution. It is protected speech. Similarly, the threat to publish personally identifying information is not defamation because it is not a misrepresentation made with some degree of fault that damages the reputation or affects the plaintiff. in his profession…
That seems perfectly correct to me. The courts have ruled that statements that someone is a communist, racist, white supremacist, etc. are usually statements of opinion, as they express someone’s subjective assessment of a person’s actions and inferred motivations. “Everyone is free to speculate on someone’s motives based on disclosed facts about that person’s behavior.” Also, as I noted in other contextsquoting the Restatement of Torts:
A mere expression of opinion based on disclosed or alleged non-defamatory facts is not in itself sufficient for a defamation action, no matter how unwarranted and unreasonable the opinion or how disparaging it is….
Drawing :
[3.] Wrote to B about his neighbor C: “I think he must be an alcoholic. A jury might conclude that this was not simply an expression of an opinion, but implied that A knew of undisclosed facts that would support that opinion.
[4.] Wrote to B about his neighbor C: “He moved in six months ago. He works downtown, and I only saw him during this time twice, in his backyard around 5:30 a.m. sitting in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand . I think he must be an alcoholic. The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for the defamation….
Likewise, pointing out that a police officer made an OK gesture (which he did) and then saying that he is a white supremacist is also an opinion.
Now, falsely accusing someone of particular acts (for example, falsely claiming that a police officer shouted racial slurs at a suspect) could indeed be defamatory. But simply characterizing a person’s accurately described actions as allegedly racist and drawing inferences (without suggesting specific personal knowledge) about the person’s motives cannot give rise to a defamation action.