Ohio Court Says Calling Cincinnati Police Officer Ryan Olthaus A Racist Is Protected Speech
There are lots of things you can call veteran Cincinnati police officer Ryan Olthaus. Some people called him a racist, after he appeared to flash the ok" sign (something associated with [but not limited to] white supremacists) at anti-police violence protesters.
You can also call him a coward. After all, he couldn't be bothered to use his own name when suing Facebook users for calling him a racist. Instead, he spent several months trying to keep his own name out of his own litigation. He first secured an extremely unconstitutional temporary restraining order that forbade the defendants from publishing his real name on social media.
Then he managed to talk the court into allowing him to proceed with his lawsuit anonymously, claiming that anonymity was probably the only way to prevent him from being murdered or whatever by internet users. I mean, that's what his lawyer argued when trying to prevent the restraining order from being lifted.
[Defendants] make this claim even though the potential harm to the officer and his family from the publication of his personal information, occasioned by the protestors' own baseless and malicious social media posts, far outweighs any burden from the limited restriction on doxing him.
And whatever this is...
Recent FBI data show upticks in police officer killings during years when there have been major incidents of civil unrest across the country.
This word salad managed to convince the lower court, but Officer Ryan Olthaus's victory was short-lived. In early 2022, the Ohio Supreme Court said Olthaus needed to use his real name if he wanted to move forward with his libel lawsuit.
Roughly two years later, Ryan Olthaus, police officer and alleged racist, has suffered another loss. According to the Ohio Appeals Court, calling Officer Ryan Olthaus a racist is just the First Amendment doing its job. (h/t Volokh Conspiracy and Eugene Volokh in particular, who filed a brief arguing against Olthaus's anonymity request)
The court [PDF] says that this is what it's here for: to allow people to seek redress for their grievances. And yes, libel is not protected by the First Amendment. But this isn't libel, it's the other thing: protected opinion.
Faced with public accusations that he is a white supremacist" who flashed a white power" hand sign at a demonstration, plaintiff-appellant Ryan Olthaus, a Cincinnati police officer, sought redress through defamation law and several related causes of action. But, as justifiably aggrieved by defendants' assertions as he may feel, defamation law does not allow for recovery when the statements in question constitute opinions (rather than false statements of fact), nor without a showing of actual malice by a public official.
What's that thing people like Officer Olthaus (assuming he is the sort of bigot he appears to be) are often heard saying? Oh, yeah. Facts don't care about your feelings." It may suck to be called a racist by Facebook users. It certainly sucks if you aren't actually a racist. But if you give people the impression you might be a bit of a bigot (even unintentionally), they're going to form opinions. And the First Amendment (along with Ohio's own constitution) protects statements of opinion.
This appeal was handled poorly by Olthaus and his legal rep. Given the facts of the case, it would have been impossible to do it well, especially after having wasted time and money on unconstitutional restraining orders and trying to keep his name out of the papers (court and otherwise).
Rather than address the grounds stated in the lower court's dismissal of his lawsuit, Olthaus decided to make the absurd claim that opinions stated during the heat of nationwide protests against police violence were somehow more harmful than normal opinions and, accordingly, less protected by the First Amendment.
Faced with the trial court's dismissal of his defamation and related claims on the basis that Defendants' statements were either true or matters of opinion, Officer Olthaus fails to directly address the trial court's reasoning on appeal. Instead, he emphasizes the notice-pleading standard and the harm that Defendants' statements occasioned, responding to the trial court's reasoning only to assert that [i]n the political atmosphere that existed at the time of the incident, Appellees' statements rose above mere opinion when they were designed to personally attack and cause harm." But this statement does not reflect the standard for recovery under Ohio defamation law. Tellingly, Officer Olthaus cites no case law to support this argument, does not suggest the trial court used the wrong legal standard in its decision, and does not assert that it misapplied any relevant case law. Rather, he broadly asserts that the trial court got it wrong and assures us that he could prove his point later in the litigation.
Yeah, that's the substance of the arguments: if you guys would just let me litigate endlessly, I'm sure I could show that I've been defamed. My basis for these assertions are [CITATION NOT FOUND].
Likewise, he advances no substantive argument responding to the trial court's conclusion that he failed to plead actual malice and that [a]ctual malice cannot be established in this case." He merely asserts that, given the opportunity," he could demonstrate the falsity of the assertions and Defendants' reckless disregard for them. Again, he fails to advance any argument for how he would prove such a point, which ultimately rests on the trial court's conclusions that statements of opinion cannot be made with actual malice and are not actionable in defamation.
This means Officer Ryan Olthaus must now have his arguments made by the state appeals court. The court goes the extra mile, perhaps if only to clearly demonstrate to the willfully obtuse cop how badly he's lost this lawsuit.
In shutting Olthaus down, the appeals court makes it clear this lawsuit is not only bogus, but has been badly handled since day one, with the officer and his legal rep failing to do the very basic things they're supposed to do when arguing in court. Common things, like citing relevant case law. Or, you know, using actual malice" correctly.
Though the above conclusion suffices to affirm the trial court's dismissal of the defamation claims, we further agree with the trial court that Officer Olthaus failed to sufficiently plead actual malice. In his complaint, he refers only to Defendants' malicious" conduct and false" statements, avoiding both the phrase actual malice" and the critical test from New York Times Co. v. Sullivan for public official defamation plaintiff...
[...]
Apart from failing to recite the required language, Officer Olthaus also fails to allege any facts showing that Defendants acted with actual malice. The closest he comes is in accusing Ms. White and Ms. Gilley of falsely" accusing him of using a white power" hand signal in their citizens' complaints. Even generously construing his assertions as invoking the standard of actual malice" and taking them as true, we agree with the trial court that this fact" cannot suffice as pleading actual malice" because the assertions are either true or statements of opinion. Officer Olthaus admits to making the gesture, so that fact is true, but he vigorously contests its meaning. But, as we indicated above, Defendants' various assertions that Officer Olthaus is a white supremacist" and that his gesture carried a racist meaning are fundamentally statements of opinion.
Yeah, this was never libel. And Olthaus should have known this. It's clear he thought firing off a lawsuit would silence his online critics. When that didn't work, he and his lawyer ran out of ideas and basically began winging it. At least Officer Ryan Olthaus, alleged racist, recognized the Streisand Effect would come for him following the filing of this lawsuit and made some moves to stave off that inevitability. Sure, these efforts failed almost immediately, but at least he tried.
Sometimes, bad things happen to good people when discussions go sideways on social media services. And, sometimes, stuff happens to Officer Ryan Olthaus. But no matter who's filing the lawsuit, the law is still the law.
We recognize and appreciate Officer Olthaus' point that the allegations of white supremacy were incredibly damaging to him, personally and professionally. Social media has the capacity to ruin lives with the click of a button, but courts do not exist to referee debates on those platforms, nor could we do so consistent with the First Amendment and the Ohio Constitution.
Olthaus loses again. He's out whatever money he's spent on this and none of this has done anything to rehabilitate his reputation. Instead, all it's done is hammer the point home that this officer in particular can't handle being criticized by people with far less power than he has.