Protective Order Against Stalker Invalidated as Prior Restraint, but Reframing Future Orders May Appease Constitutional Concerns

“‘FREE SPEECH*'” by Newtown grafitti is licensed under CC BY 2.0

Max Londberg, Associate Member, University of Cincinnati Law Review

I. Introduction

In 2016 and 2017, two women in Mercer County, Ohio, endured disturbing abuse from a close relative, Jeffrey Rasawehr.[1] He wrote public messages accusing the women of involvement in their husbands’ deaths.[2] The women successfully sought a civil stalking protection order after a trial court found Rasawehr had violated Ohio’s menacing by stalking statute, R.C. 2903.211.[3] The Third District affirmed the trial court’s finding and its remedy, which included banning Rasawehr from “posting” about the women in online forums and from “posting about the deaths of [the women’s] husbands in any manner that expresses, implies, or suggests that [the women] are culpable in those deaths.”[4]

The Supreme Court of Ohio vacated as prior restraints the posting restrictions levied against Rasawehr.[5] Amici curiae supporting the women had earlier warned that vacating the restrictions would have a “devastating impact” on victims of stalking and “eviscerate the purposes and intent of all civil protection orders in the state.”[6]  Yet caselaw in other states may provide a roadmap for crafting future protective orders that pass constitutional muster.[7] Section II of this article will analyze the court’s opinion in Bey and introduce competing ideas. In Section III, it will detail why the Bey decision missed the mark before describing how, despite this adverse ruling to stalking victims, future courts could still fashion protective orders that encompass speech elements.

II. Background

A. Facts Considered by the Court

Joni Bey and Rebecca Rasawehr, Jeffrey Rasawehr’s sister and mother, respectively, reported to the trial court that Rasawehr had accused the women online of contributing to their husbands’ deaths.[8] Rasawehr also stated that Joni Bey was on Florida’s “Most Wanted” list.[9] He even hired a private investigator, who interrogated Joni Bey in her home about her husband’s death.[10]

The women filed petitions for a civil stalking protection order.[11] Ohio Revised Code §2903.211 prohibits menacing by stalking.[12] After finding Rasawehr violated the statute, the trial court prohibited Rasawehr from posting generally about the women in online forums and from implicating them in their husbands’ deaths.[13] The women reported loss of sleep, anxiety, unwanted attention from others in the community, and other effects resulting from Rasawehr’s stalking.[14]

The Supreme Court of Ohio noted that the stalking statute’s purpose is to prevent violence and to allow law enforcement officials to “act before a victim is harmed by a stalker.”[15] And the Ohio Domestic Violence Network, joined by others in an amici curiae brief, provided statistics showing nearly all victims of stalking experience adverse effects, even from “seemingly innocuous” contact by a stalker.[16] In addition, “victims are more likely to be re-abused if their [protective] orders bar abusive contact but not all contact.”[17]

B. The Court’s Legal Analysis

The Supreme Court of Ohio analyzed this issue in three phases.[18] The first phase considered whether the posting restrictions on Rasawehr were content-based or content-neutral.[19] The second phase considered whether the protective order prohibited speech integral to criminal conduct—one of several free speech exceptions.[20] The court held it did not absent a judicial determination that Rasawehr’s future expression would “necessarily be integral to criminal conduct.”[21] Such a determination would require a protracted criminal proceeding, but civil stalking protection orders are useful in part because they offer “proactive” safety measures before abusive behavior escalates.[22] Thus, waiting for both the criminal violation to occur and its subsequent prosecution would be antithetical to one goal of protective orders. Finally, the third phase considered whether the restrictions passed strict scrutiny. This blog will analyze phase one, as a different outcome in this phase would likely result in a lower level of scrutiny, and thus a higher chance that a restriction would be upheld.[23]

In phase one, the Bey court reasoned that, because the restrictions were triggered by the subject matter of Rasawehr’s speech (the women), they were content-based.[24] The court declined to follow Commonwealth v. Lambert, where a Pennsylvania intermediate court upheld a similar protective order as the one at issue in Bey.[25] The Lambert court held a restriction that prohibited an abuser from posting online about a woman was content-neutral as it was “not concerned with the content of [the abuser’s] speech but with, instead, the target of his speech, namely, [the victim].”[26] The Bey court countered by stating the target of speech “necessarily concerns the subject matter of speech.”[27]

In United States v. O’Brien, the Supreme Court reiterated that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”[28] But the Bey court held the posting restrictions against Rasawehr were not “merely incident to a regulation of conduct” but instead regulated expressive activity.[29]

III. Discussion

The Supreme Court of Ohio was likely correct in holding the prohibition on Rasawehr from posting about the women’s culpability in their husbands’ deaths was content-based; the women did not “seriously” dispute that finding.[30] But the court failed to properly consider the magnitude of Rasawehr’s conduct on the women. The court should have upheld the general posting prohibition. The Lambert decision provides a model. By centering the effect of the abuser’s actions on the victim, the court saw the issue as one of conduct, not speech:

An abuser’s mere posting of any reference to his or her victim on social media, regardless of content, is, thus, automatically considered targeting tantamount to making impermissible contact with the victim. For an adjudged abuser to refer to a victim in publicly trafficked electronic forums, for whatever reason, is to exercise control over the victim in public, thus perpetuating the abuse of the victim.[31]

The amici curiae supporting the women in Bey emphasized this blending of language and action where the Supreme Court of Ohio failed to. Their brief stated Rasawehr’s “‘speech’ is conduct (stalking)…”[32] The Ohio menacing by stalking statute itself supports this, as one element requires showing a person has engaged in a “pattern of conduct.”[33]

Recognizing this distinction—between prohibiting speech versus prohibiting conduct—could equip lower courts with an appropriate method for issuing constitutional protection orders in the future. A California Court of Appeals faced a similar challenge to a protection order as in Bey.[34] In R.D., the court considered a protective order that precluded the abuser from committing certain acts, rather than uttering certain things. The court thus found that: “To the extent the order limits P.M.’s speech, it does so without reference to the content of her speech.”[35] The restriction at issue did not “prohibit P.M. from making statements on any subject, as long as … the statements’ contents do not constitute illegal harassment.”[36] The R.D. court ultimately held the restriction was content-neutral and upheld its constitutionality.[37]

Reframing a protection order like that at issue in Bey into something more akin to the one considered in R.D. could bolster its constitutionality. Thus, rather than prohibiting stalkers from posting about certain topics (victims generally or their culpability in certain crimes), a court could simply prohibit stalkers from stalking their victims. This may reframe protective orders as restrictions on actions that serve to “control” a victim rather than an abuser’s posts, while still encompassing those posts.[38]

IV. Conclusion

The interests raised by the Bey case are weighty: the legal protection available to victims of stalking and other crimes versus the maintenance of free speech rights. But the Bey court failed to properly safeguard the former in this case. Nonetheless, in light of decisions in other states, Ohio courts may yet find that by emphasizing abusers’ acts over their speech content in protection orders, the remedy may still meet the constitutional demands of the First Amendment. Our laws should not compel anyone to endure the ills of stalking, even where speech is involved.

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[1] Bey v. Rasawehr, 161 N.E.3d 529, 535 (2020).

[2] Bey v. Rasawehr, 2019-Ohio-57, 2019 WL 182418, ¶¶ 8, 13.

[3] Id. at ¶ 32.

[4] Id. at ¶¶ 35, 49.

[5] Bey, 161 N.E.3d at 546. See generally Prior Restraint, Legal Information Institute, Cornell Law School (last visited Sept. 26, 2021) https://www.law.cornell.edu/wex/prior_restraint (describing a prior restraint as “government action that prohibits speech or other expression before the speech happens.”).

[6] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295) (adding that, given the correlation between civil stalking protection orders and protective orders against other types of abuse, the decision here will also impact “victims of dating and domestic violence, including child abuse”).

[7] See, e.g., R.D. v. P.M., 135 Cal.Rptr.3d 791, 800-01 (Cal. Ct. App. 2011) (upholding protective order that banned stalker from disseminating harassing flyers about woman in part because the restriction did not reference speech content).

[8] Bey, 161 N.E.3d at 532.

[9] Rasawehr, 2019 WL 182418, ¶ 8-9.

[10] Id. at ¶ 10.

[11] Id. at ¶ 5.

[12] Id. at ¶¶ 9, 11 (describing the statute as prohibiting knowingly causing a person to believe they or their family will be harmed or causing mental distress, which includes “temporary substantial incapacity”).

[13] Id. at ¶¶ 20, 32.

[14] Id. at ¶ 17.

[15] Bey, 161 N.E.3d at 535.

[16] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295).

[17] Id. Cf. Stalking & Intimate Partner Violence: Fact Sheet, Stalking Prevention, Awareness, and Resource Center, (last visited Sept. 27, 2021), https://www.stalkingawareness.org/wp-…content/uploads/2018/07/SPARC_IPV_StalkingFactSheet_2018_FINAL2.pdf (stating that more than half of femicide victims reported stalking to police prior to be killed by their stalkers).

[18] Bey, 161 N.E.3d at 529. See generally Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (describing content-neutral regulations as those that are “justified without reference to the content of the regulated speech”) (emphasis in original); Government Restraint of Content of Expression, Legal Information Institute, Cornell Law School (last visited Sept. 27, 2021) https://www.law.cornell.edu/constitution-conan/amendment-1/government-restraint-of-content-of-expression (describing content-based restrictions as those that draw “distinctions based on the message a speaker conveys”).

[19] Id. at 538.

[20] Id. at 540.

[21] Id. at 542.

[22] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295).

[23] Commonwealth v. Lambert, 147 A.3d 1221, 1228 (Pa. Super. Ct. 2016) (stating the U.S. Supreme Court has recognized that “where the governmental regulation applies a content-neutral regulation to expressive conduct, strict scrutiny is an inappropriate test to apply”) (citing Texas v. Johnson, 491 U.S. 397 (1989)).

[24] Bey, 161 N.E.3d at 539.

[25] Id.

[26] 147 A.3d at 1229 (emphasis in original).

[27] Bey, 161 N.E.3d at 539.

[28] 391 U.S. 367, 376 (1968). Accord Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (stating that “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidence, or carried out by means of language, either spoken, written, or printed”).

[29] Bey, 161 N.E.3d at 539.

[30] Id. at 539.

[31] Lambert, 147 A.3d at 1229 (emphasis in original).

[32] Brief for Ohio Domestic Violence Network et al. as Amici Curiae Supporting Appellees, Bey v. Rasawehr, 161 N.E.3d 529 (2020) (No. 2019-0295) (emphasis added).

[33] Bey, 161 N.E.3d at 534 (emphasis added).

[34] R.D., 135 Cal.Rptr.3d at 793 (considering free speech challenge to protective order that prevented contact within 100 yards and “specifie[d] acts of personal conduct that P.M. must not do to R.D. … including harassing, attacking, threatening, assaulting, or stalking them…”) (emphasis added).

[35] Id. at 799.

[36] Id. at 800

[37] Id. at 799, 801.

[38] Lambert, 147 A.3d at 1229.