From right this moment’s Ohio Courtroom of Appeals opinion in Olthaus v. Niesen, written by Decide Pierre Bergeron and joined by Judges Candace Crouse and Marilyn Zayas (for extra on the overall authorized difficulty, which has arisen as to allegations of Communism in addition to racism, see this put up):
Throughout the wave of racial justice demonstrations that swelled in the summertime of 2020, the Cincinnati Metropolis Council convened a collection of open conferences. At an open discussion board earlier than the council’s price range and finance committee assembly in June 2020, Officer Olthaus was assigned to offer crowd management and safety.
Throughout an interplay with defendant-appellee Terhas White, who was taking part in an illustration outdoors the council’s chambers, Officer Olthaus flashed an “OK” image, pinching collectively his thumb and index finger. He maintains that he made this gesture in response to Ms. White asking him in regards to the standing of his fellow officer who had not too long ago left the realm after an interplay with demonstrators.
She and the opposite defendants-appellees (collectively, “Defendants”), nonetheless, noticed issues very in another way. In varied methods, they publicly criticized Officer Olthaus and his gesture, describing him, primarily in social media posts, as a “white supremacist” and calling the gesture a “white power” hand signal….
[Olthaus] alleges that Ms. White revealed social media posts referring to him as a “white supremacist kkkop” and “white supremacist piece of shit,” and that Julie Niesen made posts in the same vein. He additionally alleges that Ms. White knowingly submitted a false criticism with the town’s Citizen Grievance Authority (“CCA”), accusing him of utilizing a “white power” hand sign on the job. He accuses Ms. Gilley of submitting the same criticism with the CCA by which she asserts that he “[threw] up a white supremacy hand-signal towards citizens of color,” which she perceived as “a threat to me, my children and so many others.”
Lastly, he claims that James Noe posted a profane insult about him on social media within the context of claiming that he flashed “white power symbols to Black speakers,” and that Mr. Noe posted a “deceptively edited photograph” of Officer Olthaus designed to painting him as a “white supremacist.” [The supposed deceptive editing wasn’t heavily litigated, and to my knowledge the editing didn’t actually make any factual assertions about Plaintiff. -EV] He additionally claims Mr. Noe threatened to publicize his private figuring out info on social media.
Olthaus sued for defamation and associated torts, however the court docket concluded that the defendants’ speech was opinion somewhat than a false assertion of reality:
In the end, the plainly subjective, value-based language and non-verifiability of Defendants’ varied statements dominate our evaluation. Contemplating “the common meaning of the allegedly defamatory statement,” an extraordinary reader would perceive the phrases “white supremacist” and “kkkcop” to “lack[] precise meaning.” They’re inherently value-laden labels and “conjure[] a vast array of highly emotional responses that will vary from reader to reader.”
The identical applies for Defendants’ interpretation of Officer Olthaus’ “OK” hand gesture, which they imbue with a racist that means, as a result of an extraordinary reader would perceive {that a} speaker and interpreter might need totally different views on what the hand gesture means—a matter on vivid show on this litigation. Moreover, as a result of labels like “white supremacist” “‘lack[] a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.'” Whether or not a press release is verifiable relies upon upon whether or not it’s “objectively capable of proof or disproof,” however Officer Olthaus musters no argument for the way somebody would plausibly go about proving or disproving one’s white supremacist bona fides.
Equally, Defendants’ assertions that Officer Olthaus flashed a “white power” hand signal is just not prone to reasoned strategies of verification. It’s undisputed that he made a selected hand gesture—what’s disputed activates the subjective that means of the gesture, with each the officer and Defendants providing competing interpretations.
Beneath the totality of the circumstances, the statements featured within the criticism symbolize opinions, somewhat than info that may be examined to find out their veracity. Due to this fact, we agree with the trial court docket’s reasoning, substantively unchallenged on enchantment, that the Ohio Structure insulates Defendants’ opinion speech from Officer Olthaus’ defamation claims. We additional agree with the trial court docket that Mr. Noe’s alleged risk to launch his private info is just not a false assertion of reality that might represent defamation.
Our conclusion aligns with federal and state case regulation establishing that accusations of bigotry much like these current right here usually are not actionable in defamation as a result of such language “is value-laden and represents a point of view that is obviously subjective.” Vail v. Plain Seller Publishing Co. (Ohio 1995) (commentary revealed in newspaper calling public-figure plaintiff a “gay-basher” and a “bigot” who “foster[s] homophobia” protected beneath Ohio Structure); Lennon v. Cuyahoga Cty. Juvenile Courtroom (Ohio Ct. App. 2006) (coworker’s office accusation that plaintiff was a “racist” constitutionally protected); Condit v. Clermont Cty. Rev. (Ohio Ct. App. 1996) (accusations that plaintiff was a “‘fascist,’ and an ‘anti-Semite,’ contain elements of hyperbole and ambiguity” and thus are opinion and never actionable as defamation; gathering federal case regulation establishing that “accusations of ethnic bigotry are not actionable as defamation”)….
Defendants are represented by Erik W. Laursen (Laursen, Colliver & Mellott, LLC), Justin Whittaker (Whittaker Legislation, LLC), and J. Robert Linneman and H. Louis Sirkin (Santen & Hughes). One of many defendants had earlier been represented by Jennifer Kinsley, who was elected final yr to take a seat on the Ohio First District Courtroom of Appeals, which heard this case (although in fact she wasn’t on this panel).
Observe that that is the case by which I filed an amicus temporary in a problem to a previous restraint that an earlier choose within the case had entered, and likewise intervened to oppose the police officer’s continuing pseudonymously and with an affidavit sealed. (Many because of Jeffrey M. Nye [Stagnaro, Saba & Patterson], who was professional bono native counsel on the amicus temporary, and who represented me as to pseudonymity and sealing.)