There’s finally a substantive decision in Olthaus v. Niesen, the case in which I argued before the Ohio Supreme Court challenging a pretrial prior restraint on defendant’s publishing plaintiff’s name, and in which my invaluable pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) argued on my behalf challenging plaintiff’s pseudonymity and the sealing of his affidavit. Here’s the heart of last week’s opinion by Judge Megan Shanahan in Olthaus v. Niesen:
Following the death of George Floyd, racial tensions were high throughout our country. Responding to public protests on policing in Cincinnati, Cincinnati City Council scheduled a series of public meetings in the summer of 2020 to hear from constituents. On June 24, 2020, during one such meeting, Plaintiff, a uniformed police officer, was assigned to City Hall to provide police services including crowd control and security for City Council’s chambers.
During that meeting, Plaintiff gave a hand signal that was interpreted by some as a “white supremacist” hand signal. According to Plaintiff, the hand signal was intended as an “okay” signal in response to an inquiry after a fellow officer that had just left the scene. The next day, through social media and filing a complaint with the Citizen’s Complaint Authority, Defendants commented upon the hand signal and upon Plaintiff.
Plaintiff filed a lawsuit [for, among other things, defamation -EV] to restrain Defendants from publishing derogatory comments about him and to prevent them from publishing information about his family. Plaintiff maintains that he gave the universal hand signal for “okay” and that Defendants misinterpreted the signal as a “white power” sign. He argues that being called a white supremacist cop casts him as the worst kind of villain in today’s society, damaging his professional and personal reputations and career, and threatening his safety and the safety of his family, colleagues, and friends….
Plaintiff states that in the current political atmosphere, Defendants’ statements rise above mere opinion and operate as statement of fact. An opinion does not become a statement of fact because of political atmosphere.
The Complaint does not allege actual malice on the part of Defendant Niesen. It alleges Defendants’ acts were malicious but it fails to plead any facts showing that Defendant Niesen made any statement with knowledge of the assertion’s falsity or reckless disregard for its truth. Indeed, the statements were either a) true, or b) opinion.
According to the allegations of the Complaint, on June 25, 2020, Defendant Niesen published a post on social media in which she portrayed Plaintiff falsely as a “white supremacist,” a term not subject to being proven true or false. She wrote that Plaintiff used a hand signal that white supremacists use. That statement, and the other statements made by Defendant Niesen, were true. Defendant Niesen’s post is constitutionally protected speech.
Accepting the factual allegations of the Complaint as true, it appear[s] beyond doubt that Plaintiff can prove no set of facts warranting a recovery against Defendant Niesen for false light invasion of privacy or defamation. Regarding the negligence/recklessness claim, Plaintiff alleges that Defendants disseminated information that they knew or should have known was false. As the Court has found the post to be constitutionally protected speech, the claim for negligence/recklessness fails as well….
The Complaint alleges that Defendant White filed a complaint with the Citizen’s Complaint Authority on June 25, 2020, and falsely accused Plaintiff of using the “white power” hand signal in the course of his employment. The accusation was not false. The hand signal was made. The intent behind the hand signal is disputed. Statements critical of public officials engaged in their official duties are actionable only if uttered with knowledge of their falsity or the reckless disregard of their truth. Publishing that it was the “white power” hand signal is not actionable as defamation or false light invasion of privacy.
The Complaint also states that Defendant White published on social media that Plaintiff is a “white supremacist kkkop” and a “white supremacist piece of shit.” As these statements are not verifiable as true or untrue, they are opinions and are protected speech….
According to the allegations of the Complaint, Defendant Noe posted on social media that Plaintiff is a “limp-dicked POS [piece of shit]” and a “white supremacist,” and that Plaintiff flashed the “white power symbol to Black speakers.” The first two statements are incapable of being proven true or untrue and the third statement, that a hand signal was made by Plaintiff, is true. What was intended to be conveyed by the hand signal is disputed. But “[h]onest misinterpretation does not amount to actual malice.” There is a basis in fact for Defendant Noe believing 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 value-laden and represents a point of view that is obviously subjective.” “It is not sufficient for [Plaintiff] to show that an interpretation of facts is false; rather, he 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 publicize Plaintiff’s personal identifying information in his social media posts.” As the [Ohio] Supreme Court noted, Defendant Noe did not express a clear intent to publicize name, address and phone number. Rather, he queried whether to do so would be legal and stated he would not do so unless told it was legal. Despite threatening to share this information, “while potentially offensive and disagreeable,” a claim for false light invasion of privacy will not lie. The statement neither casts Plaintiff in a light that would be highly offensive to a reasonable person, nor does the statement reflect that Defendant Noe had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which Plaintiff would be placed….
The Complaint alleges that Defendant Noe portrayed Plaintiff as a “white supremacist” by posting a “deceptively edited photograph” of 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, this Court finds that referring to a police officer as a “white supremacist” is not actionable. It is protected speech. Similarly, the threat to publish personal identifying information is not defamation as it is not a false statement made with some degree of fault that reflects injuriously on Plaintiffs reputation or affects him in his profession….
This strikes me as quite correct. Courts have held that statements that someone is Communist, racist, white supremacist, etc. are generally statements of opinion, because they express someone’s subjective evaluation of a person’s actions and inferred motivations. “Everyone is free to speculate about someone’s motivations based on disclosed facts about that person’s behavior.” Also, as I’ve noted in other contexts, quoting the Restatement of Torts:
A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is….
[3.] A writes to B about his neighbor C: “I think he must be an alcoholic.” A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.
[4.] A writes to B about his neighbor C: “He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated 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 defamation….
Likewise, pointing out that a police officer made an OK gesture (which he did) and then saying that this is white supremacist is also an opinion.
Now actually falsely accusing someone of particular actions (e.g., falsely asserting that a police officer had shouted racial slurs at a suspect) could indeed be defamatory. But merely characterizing a person’s accurately-described actions as supposedly racist, and drawing inferences (without suggesting any specific personal knowledge) about the person’s motivations, is not actionable as defamation.