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Can First Amendment Protections to Free Speech Be Restricted by Civil Stalking Protection Orders? The Ohio Supreme Court To Decide

In a split decision, the Third District Court of Appeals recently upheld a lower court's issuance of civil protection order that protected the Petitioners by prohibiting the Respondent from making any comments about the Petitioners on social media. The case of Bey v. Rasawehr presents a relatively new development in the law as it focuses on the interplay between First Amendment protections, concerns for victim safety in stalking related cases, and the pervasiveness of social media. While the majority of the Court upheld the lower court's order restricting Respondents free speech, the dissent sought to overturn the lower court's order because it prohibited any type of commentary on social media regarding the protected persons.

In a 4 to 3 decision, the Ohio Supreme Court accepted jurisdiction of the case, appealed by the Respondent after the unfavorable decision from the Appellate Court. Oral arguments were heard on February 11, 2020 and a decision from the Ohio Supreme Court is expected within the next few months.

There are competing legal interests at stake in Bey v. Rasawehr:

From the Respondent's perspective, the lower court's order is a "prior restraint" on his right to free speech because the order prohibits his social media commentary before it has even occurred, and it assumes that any social media commentary by Respondent about the Petitioners is a criminal act violating the menacing by stalking statute or other statues.

From the Petitioner's perspective, the issue is not about free speech, rather, it's about their right to protection from mental distress and/or physical harm brought about by Respondent's pattern of posting social media commentary, and the fact that this conduct involves speech should not be a defense to what is otherwise a violation of the menacing by stalking statute.

It will be interesting to see how the Supreme Court rules on this issue. But even if the Supreme Court overturns the lower court's decision and prohibits this type of judicial order in protection orders, the Respondent is still subject to the other types of criminal prosecution if the social media postings otherwise violate the law. In fact, the Respondent in Bey v. Rasawehr was convicted of several criminal charges, including menacing by stalking and telecommunications harassment, for conduct that was similar to the allegations that gave rise to the original protection order. 

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