[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Bey 

v. Rasawehr, Slip Opinion No. 2020-Ohio-3301.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2020-OHIO-3301

BEY ET AL., APPELLEES, v. RASAWEHR, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301.] 

First Amendment—Prior restraints—R.C. 2903.214—Civil-stalking protection 

order enjoining future Internet postings about a person imposes an 

unconstitutional prior restraint on protected speech in violation of the First 

Amendment to the United States Constitution—Court of appeals’ judgment 

reversed in part.

(No. 2019-0295—Submitted February 11, 2020—Decided June 16, 2020.) 

APPEAL from the Court of Appeals for Mercer County, 

Nos. 10-18-02 and 10-18-03, 2019-Ohio-57. 

_________________ 

DONNELLY, J. 

{¶ 1} In this discretionary appeal we are asked to determine whether a civilstalking protection order enjoining future postings about a petitioner imposes an 

unconstitutional prior restraint on protected speech in violation of the First 
SUPREME COURT OF OHIO

 2

Amendment to the United States Constitution. We conclude that it does. We 

therefore reverse the judgment of the Third District Court of Appeals. 

I. BACKGROUND 

{¶ 2} In November 2015, appellee Joni Bey’s husband died. 

Approximately seven months later, appellant, Jeffrey Rasawehr, Bey’s brother, 

ostensibly began writing and posting public comments on craigslist.org and the 

Lima News website that accused Bey of having contributed to her husband’s death 

and that further accused local public officials of having failed to investigate the 

circumstances of his death. In September 2017, after a several-month period of 

relative quiet, a new barrage of similar public accusations commenced. A billboard 

located near Bey’s home contained a large portrait-style picture of Rasawehr with 

the message, “Jeff Rasawehr says, ‘LEARN ABOUT COUNTY CORRUPTION 

& COVER-UPS AT...’ CountyCoverUp.com.” (Capitalization sic.) The website 

contained a series of Internet postings apparently authored by Rasawehr, including 

postings dated September 13, October 1, November 2, and November 3, 2017, in 

which Rasawehr reiterated his accusations against Bey and various local public 

officials. 

{¶ 3} Rasawehr’s father died in January 2008. And in June 2016, 

Rasawehr’s mother, appellee Rebecca Rasawehr, began receiving treatment similar 

to that of Bey. The June 2016 and subsequent 2017 Internet postings, ostensibly 

authored by Rasawehr, likewise accused Rebecca of having contributed to her 

husband’s death and again accused local public officials of having failed to 

investigate that death. 

{¶ 4} On November 16, 2017, pursuant to R.C. 2903.214, Joni Bey and 

Rebecca Rasawehr (collectively, “appellees”) each filed a petition for a civilstalking protection order (“CSPO”) against Rasawehr. Their petitions, to which 

various postings allegedly authored by Rasawehr were attached, were heard by the 

Mercer County Court of Common Pleas on December 4, 2017. Appellees each 
January Term, 2020 

3

testified to the facts set forth in their petitions and the mental distress caused by 

Rasawehr’s postings. Rasawehr invoked his Fifth Amendment right and declined 

to answer questions put to him by appellees’ counsel. 

{¶ 5} On January 18, 2018, the trial court granted appellees’ petitions and 

issued CSPOs that prohibited Rasawehr from having any contact with them, 

directly or indirectly, coming within 500 feet of them, or entering certain protected 

locations. In paragraph nine of the respective CSPOs (“paragraph nine”), the trial 

court added the following provision tailored specifically to this case: 

IT IS FURTHER ORDERED: RESPONDENT SHALL REFRAIN 

from posting about Petitioners on any social media service, website, 

discussion board, or similar outlet or service and shall remove all 

such postings from CountyCoverUp.com that relate to Petitioners. 

Respondent shall refrain from posting about the deaths of 

Petitioners’ husbands in any manner that expresses, implies, or

suggests that the Petitioners are culpable in those deaths. 

(Capitalization sic.) This order will remain in effect until January 15, 2023. 

{¶ 6} Rasawehr appealed and the Third District Court of Appeals affirmed 

the trial court’s judgment in both cases. The court of appeals first found that the 

evidence in the record supported the trial court’s determination that appellees had 

satisfied their burden to establish that the CSPOs against Rasawehr were warranted. 

2019-Ohio-57, ¶ 24-34. The court of appeals rejected Rasawehr’s constitutional 

challenges to paragraph nine. Id. at ¶ 35-48. One member of the court dissented 

but only as to the portion of paragraph nine prohibiting Rasawehr from posting 

about appellees on any social-media service, website, discussion board, or similar 

outlet or service, finding that provision to be ambiguous and thus unenforceable. 

Id. at ¶ 50-54 (Zimmerman, P.J., dissenting in part and concurring in part). 
SUPREME COURT OF OHIO

 4

{¶ 7} We accepted jurisdiction over Rasawehr’s second proposition of law: 

“Prior restraints on the exercise of free speech are unconstitutional and 

presumptively invalid.” See 155 Ohio St.3d 1455, 2019-Ohio-1759, 122 N.E.3d 

216. 

II. ANALYSIS 

{¶ 8} This case requires us to consider whether paragraph nine of the

CSPOs issued by the trial court constitutes a prior restraint on protected speech in 

violation of the First Amendment to the United States Constitution.1

 To resolve 

this issue, we will begin by reviewing the law that governs the issuance of CSPOs 

in Ohio. We will then consider the First Amendment principles governing 

regulations of speech that Rasawehr alleges have been violated. Finally, we will 

apply those principles to paragraph nine of the CSPOs issued in this case. 

A. Ohio CSPOs 

{¶ 9} R.C. 2903.211 prohibits menacing by stalking. R.C. 2903.211(A)

provides: 

(1) No person by engaging in a pattern of conduct shall 

knowingly cause another person to believe that the offender will 

cause physical harm to the other person or a family or household 

member of the other person or cause mental distress to the other 

person or a family or household member of the other person. * * * 

(2) No person, through the use of any form of written 

communication or any electronic method of remotely transferring

information, including, but not limited to, any computer, computer 

network, computer program, computer system, or 

 

1. Rasawehr’s appeal does not claim protection under Article I, Section 11 of the Ohio Constitution 

(“Freedom of speech; of the press; of libels”), so we do not consider whether Ohio’s constitution is 

violated by paragraph nine. 
January Term, 2020 

5

telecommunication device shall post a message or use any 

intentionally written or verbal graphic gesture with purpose to do 

either of the following: 

 (a) Violate division (A)(1) of this section; 

 (b) Urge or incite another to commit a violation of division 

(A)(1) of this section. 

 

{¶ 10} “ ‘Pattern of conduct’ means two or more actions or incidents closely 

related in time, whether or not there has been a prior conviction based on any of 

those actions or incidents.” R.C. 2903.211(D)(1). 

{¶ 11} “Mental distress” means “[a]ny mental illness or condition that

involves some temporary substantial incapacity,” R.C. 2903.211(D)(2)(a), or that 

“would normally require psychiatric treatment, psychological treatment, or other 

mental health services,” R.C. 2903.211(D)(2)(b). 

{¶ 12} “ ‘Post a message’ means transferring, sending, posting, publishing, 

disseminating, or otherwise communicating, or attempting to transfer, send, post, 

publish, disseminate, or otherwise communicate, any message or information, 

whether truthful or untruthful, about an individual, and whether done under one’s 

own name, under the name of another, or while impersonating another.” R.C. 

2903.211(D)(7). 

{¶ 13} R.C. 2903.214 provides a civil remedy for stalking victims. R.C. 

2903.214(C) states: 

A person may seek relief under this section for the person, 

or any parent or adult household member may seek relief under this 

section on behalf of any other family or household member, by filing 

a petition with the court. The petition shall contain or state all of the 

following: 
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 6

(1) An allegation that the respondent is eighteen years of age 

or older and engaged in a violation of section 2903.211 of the 

Revised Code against the person to be protected by the protection 

order or committed a sexually oriented offense against the person to 

be protected by the protection order, including a description of the 

nature and extent of the violation; 

* * * 

(3) A request for relief under this section. 

{¶ 14} R.C. 2903.214(E)(1)(a) states: 

After an ex parte or full hearing, the court may issue any 

protection order, with or without bond, that contains terms designed 

to ensure the safety and protection of the person to be protected by 

the protection order, including, but not limited to, a requirement that 

the respondent refrain from entering the residence, school, business, 

or place of employment of the petitioner or family or household

member. 

{¶ 15} A person who violates a CSPO is subject to criminal prosecution for 

a violation of R.C. 2919.27 and may be punished for contempt of court. 

R.C. 2903.214(K). 

{¶ 16} A CSPO issued pursuant to R.C. 2903.214 is a “ ‘special statutory 

remedy that is designed to prevent violence * * *.’ ” J.P. v. T.H., 9th Dist. Lorain 

No. 15CA010897, 2017-Ohio-233, ¶ 28, quoting Oliver v. Johnson, 4th Dist. 

Jackson No. 06CA16, 2007-Ohio-5880, ¶ 1. “The goal of R.C. 2903.214 is to allow 

the police and the courts to act before a victim is harmed by a stalker.” (Emphasis 

sic.) Irwin v. Murray, 6th Dist. Lucas No. L-05-1113, 2006-Ohio-1633, ¶ 15. 
January Term, 2020 

7

R.C. 2903.214 “does not create a tort remedy” to compensate the victim for 

damages. J.P. at ¶ 28, citing Oliver at ¶ 1. Instead, it provides expeditious remedies 

that “are in addition to, and not in lieu of, any other available civil or criminal 

remedies,” R.C. 2903.214(G)(1); see also J.P. at ¶ 28. 

{¶ 17} In this case, the trial court found upon a preponderance of the

evidence that Rasawehr had engaged in a pattern of conduct that was the proximate 

cause of the fear and mental distress experienced by appellees. The court further 

found that Rasawehr authored the Internet postings depicted in appellees’ hearing 

exhibits “with the knowledge, if not the intent, that his posting of the information 

would cause each of the [appellees] fear and mental distress.” Appellees’ mental 

distress “included losing sleep, unwanted communication and, in response to 

questions by others who have viewed the information on the various websites, their 

resulting reluctance to be seen in public due to embarrassment, worry, anxiety, and 

humiliation as evidenced by petitioner Bey seeking and receiving psychological 

counseling and petitioner Rebecca Rasawehr taking anxiety medication.” Further, 

the court concluded that the anxiety of each appellee had “risen to the extent that 

each fear[ed] physical harm may be inflicted upon them” by Rasawehr. Concluding 

that Rasawehr had violated R.C. 2903.211(A), the trial court issued CSPOs 

pursuant to R.C. 2903.214. 

{¶ 18} Rasawehr does not contest the trial court’s decision to issue CSPOs. 

He instead contests only the relief ordered in paragraph nine of the CSPOs, arguing 

specifically that the trial court’s order that he refrain from posting about appellees 

on any social-media service, website, discussion board, or similar outlet or service 

and that he refrain from posting about the deaths of appellees’ husbands in any 

manner that expressed, implied, or suggested that appellees were culpable in those 

deaths is a prior restraint on free speech that violates the First Amendment to the 

United States Constitution. 

 
SUPREME COURT OF OHIO

 8

B. The First Amendment and Prior Restraints 

{¶ 19} The First Amendment to the United States Constitution provides in 

part that “Congress shall make no law * * * abridging the freedom of speech.” 

“[T]he Fourteenth Amendment makes the First Amendment’s Free Speech Clause 

applicable against the States * * *.” Manhattan Community Access Corp. v. 

Halleck, ___ U.S. ___, 139 S.Ct. 1921, 1928, 204 L.Ed.2d 405 (2019). 

{¶ 20} “ ‘[A]s a general matter, “the First Amendment means that 

government has no power to restrict expression because of its message, its ideas, 

its subject matter, or its content.” ’ ” Ashcroft v. Am. Civil Liberties Union, 535 

U.S. 564, 573, 122 S.Ct. 1700, 1521 L.Ed.2d 771 (2002), quoting Bolger v. Youngs 

Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d. 469 (1983), 

quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 

L.Ed.2d 212 (1972). 

{¶ 21} The right to free speech secured by the First Amendment is not 

absolute, however, and the government may regulate it in a manner that is 

consistent with the Constitution. See Virginia v. Black, 538 U.S. 343, 358, 123 

S.Ct. 1536, 155 L.Ed.2d 535 (2003). 

{¶ 22} A regulation of speech that is content-based is presumptively 

unconstitutional and is subject to strict scrutiny, which requires that it be the least 

restrictive means to achieve a compelling state interest. See Reed v. Gilbert, 

___U.S. ___, 135 S.Ct. 2218, 2226-2227, 192 L.Ed.2d 236 (2015); see also 

McCullen v. Coakley, 573 U.S. 464, 478, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014); 

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 

1878, 146 L.Ed.2d 865 (2000); Sable Communications of California, Inc. v. Fed. 

Communications Comm., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 

(1989). 

{¶ 23} Content-neutral regulations limiting the time, place, and manner of 

speech are constitutional as long as they promote “important governmental interests 
January Term, 2020 

9

unrelated to the suppression of free speech, and do[] not burden substantially more 

speech than necessary to further those interests.” Turner Broadcasting Sys., Inc. v. 

Fed. Communications Comm., 520 U.S. 180, 117 S.Ct. 1174, 137 L.Ed.2d 369 

(1997), syllabus. See also McCullen at 486; United States v. O’Brien, 391 U.S. 

367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). 

{¶ 24} Like statutes that regulate speech, court-ordered injunctions that 

regulate speech are also subject to First Amendment scrutiny. See Madsen v. 

Women’s Health Ctr., Inc., 512 U.S. 753, 757, 114 S.Ct. 2516, 129 L.Ed.2d 593 

(1994). 

{¶ 25} Rasawehr argues that paragraph nine imposes a “prior restraint” on 

his First Amendment right to free speech. “The term ‘prior restraint’ is used ‘to 

describe administrative and judicial orders forbidding certain communications 

when issued in advance of the time that such communications are to occur.’ ” 

(Emphasis added in Alexander.) Alexander v. United States, 509 U.S. 544, 550, 

113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), quoting Nimmer, Nimmer on Freedom of 

Speech, Section 4.03, at 4-14 (1984). See also State ex rel. Toledo Blade Co. v. 

Henry Cty. Court of Common Pleas, 125 Ohio St.3d 149, 2010-Ohio-1533, 926 

N.E.2d 634, ¶ 20, quoting 2 Smolla, Smolla and Nimmer on Freedom of Speech, 

Section 15.1, at 15-4 (2009) (prior restraint refers to “ ‘judicial orders or 

administrative rules that operate to forbid expression before it takes place’ ”). 

“Temporary restraining orders and permanent injunctions—i.e., court orders that 

actually forbid speech activities—are classic examples of prior restraints.” 

Alexander at 550. 

{¶ 26} A prior restraint is not unconstitutional per se but bears “ ‘a heavy 

presumption against its constitutional validity.’ ” Southeastern Promotions, Ltd. v. 

Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), quoting Bantam 

Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d (1963). See also 

New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 
SUPREME COURT OF OHIO

 10 

822 (1971). For example, in Organization for a Better Austin v. Keefe, 402 U.S. 

415, 415-417, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), an Illinois court enjoined a 

“racially integrated community organization” that was critical of a local real-estate 

broker’s business practices “ ‘from passing out pamphlets, leaflets or literature of 

any kind, and from picketing, anywhere in the City of Westchester, Illinois.’ ” The 

United States Supreme Court ordered that the injunction be vacated, noting: 

It is elementary, of course, that in a case of this kind the courts do 

not concern themselves with the truth or validity of the publication. 

Under Near v. Minnesota, 283 U.S. 697 (1931) [51 S.Ct. 625, 75 

L.Ed. 1357], the injunction, so far as it imposes prior restraint on 

speech and publication, constitutes an impermissible restraint on 

First Amendment rights. Here, as in that case, the injunction 

operates, not to redress alleged private wrongs, but to suppress, on 

the basis of previous publications, distribution of literature “of any 

kind” in a city of 18,000. 

Id. at 418-419. The court noted that even if the petitioners’ peaceful distribution of 

literature was intended to have a coercive impact on the respondent’s business 

practices, that “d[id] not remove them from the reach of the First Amendment.” Id. 

at 419. The court declared: 

No prior decisions support the claim that the interest of an individual 

in being free from public criticism of his business practices in 

pamphlets or leaflets warrants use of the injunctive power of a court. 

Designating the conduct as an invasion of privacy, the apparent

basis for the injunction here, is not sufficient to support an injunction 

against peaceful distribution of informational literature of the nature 
January Term, 2020 

11 

revealed by this record. * * * [R]espondent is not attempting to stop 

the flow of information into his own household, but to the public. 

Accordingly, the injunction issued by the Illinois court must be 

vacated. 

(Citation omitted.) Id. at 419-420. 

{¶ 27} The fact that expression may now occur in “cyberspace—the ‘vast

democratic forums of the Internet’ in general, Reno v. Am. Civ. Liberties Union, 

521 U.S. 844, 868, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and social media in 

particular,” Packingham v. North Carolina, ___U.S.___, 137 S.Ct 1730, 1735, 198 

L.Ed.2d 273 (2017), does not mean that governmental regulation of that speech is 

beyond the reach of First Amendment analysis and scrutiny. See Packingham at 

1735-1737 (invalidating a North Carolina statute that prohibited registered sex 

offenders from accessing commercial social-networking websites); see also Toledo 

Blade Co., 125 Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634, at ¶ 25, quoting 

Citizens United v. Fed. Elections Comm., 558 U.S. 310, 326, 130 S.Ct. 876, 175 

L.Ed.2d 753 (2010) (notwithstanding the emergence of “revolutionary changes in 

the delivery of information to the public” through the Internet and other forms of 

mass communication, “ ‘[c]ourts, too, are bound by the First Amendment * * * 

[and] [w]e [must] decline to draw, and then redraw, constitutional lines based on 

the particular media or technology used’ ”). 

{¶ 28} Therefore, we must decide whether paragraph nine of the CSPOs 

enjoining Rasawehr from posting about appellees imposed an unconstitutional prior 

restraint on his First Amendment right to free speech. In doing so, we confront the 

practical conundrum such proceedings can present: 

Compared to subsequent punishment for crimes of violence, civil

harassment orders are easy to obtain and easy to enforce. These are 
SUPREME COURT OF OHIO

 12 

their chief virtues. Compared to subsequent punishment for speech, 

prior restraints are also easy to obtain and easy to enforce. These 

are their chief vices. 

Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. 781, 824 

(2013). 

III. APPLICATION OF THE FIRST AMENDMENT 

TO PARAGRAPH NINE 

{¶ 29} Rasawehr contends that by enjoining him from future posting of 

messages about appellees, the CSPOs include an unconstitutional prior restraint on 

expression covered by the First Amendment. We therefore consider these 

prohibitions in light of First Amendment jurisprudence.2

 

A. Content-based vs. content-neutral restrictions 

{¶ 30} Because these injunctive orders regulate speech, we must first 

determine whether these regulations are content-based or content-neutral. See

McCullen, 573 U.S. at 478, 134 S.Ct. 2518, 189 L.Ed.2d 502 (“we think it 

unexceptional to perform the first part of a multipart constitutional analysis first”). 

{¶ 31} “Government regulation of speech is content based if a law applies 

to particular speech because of the topic discussed or the idea or message 

expressed.” Reed, ___U.S.___, 135 S.Ct. at 2227, 192 L.Ed.2d 236. A law is 

content based “if it require[s] ‘enforcement authorities’ to ‘examine the content of 

 

2. Rasawehr does not articulate any argument contesting the provision of paragraph nine that 

ordered him to remove prior postings from CountyCoverUp.com that related to appellees. Compare 

Coleman v. Razete, 2019-Ohio-2106, 137 N.E.3d 639, ¶ 31 (1st Dist.) (order “[r]equiring 

[respondent] to remove all existing references to [petitioner] from internet or social-networking sites 

that [respondent] operate[ed] or control[led] was narrowly tailored to redress the specific pattern of 

conduct that [respondent] had engaged in to knowingly cause [petitioner] mental distress” and to 

prevent further mental distress to petitioner, while also “safeguard[ing] free speech concerns”). 

Because Rasawehr does not contest that provision here and the ordered removal of prior postings 

would not in any case amount to a prior restraint, we do not consider that provision further in this 

case. 
January Term, 2020 

13 

the message that is conveyed to determine whether’ a violation has occurred.” 

McCullen at 479, quoting Fed. Communications Comm. v. League of Women 

Voters of California., 468 U.S. 364, 383, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). 

A law is also content-based if it is “concerned with undesirable effects that arise 

from ‘the direct impact of speech on its audience’ or ‘[l]isteners’ reactions to 

speech.’ ” McCullen at 481, quoting Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 

1157, 99 L.Ed.2d 333 (1988). 

{¶ 32} Paragraph nine of the CSPOs ordered Rasawehr to (1) refrain from 

posting about appellees on any social-media service, website, discussion board, or 

similar outlet or service and (2) refrain specifically from posting about the deaths 

of appellees’ husbands in any manner that expressed, implied, or suggested that 

appellees were culpable in those deaths. Putting aside for the moment the 

extraordinary scope of these injunctions, we can only conclude that they are 

intended to regulate the subject matter, the content of speech, or both. 

{¶ 33} A regulation of speech that is “about” appellees is necessarily a 

regulation of the subject matter of that speech. The first sentence of paragraph nine 

fully regulates and in this case puts limits on any expression that relates to that 

particular subject, i.e., appellees. And the regulation of speech in the second 

sentence of paragraph nine about the deaths of appellees’ husbands that says 

anything about possible culpability regulates not only the subject matter but also 

the message. It is inescapable that a regulation of speech “about” a specific person 

(or likely any other specific subject of discussion) is a regulation of the content of 

that speech and must therefore be analyzed as a content-based regulation. 

{¶ 34} For their part, appellees do not seriously dispute that the regulation 

of speech concerning their alleged culpability in the deaths of their husbands is a 

content-based regulation. Appellees do, however, dispute that the prohibition from 

posting about them in general is content-based and instead contend that this is a 

content-neutral regulation. They rely on Commonwealth v. Lambert, 2016 PA 
SUPREME COURT OF OHIO

 14 

Super 200, 147 A.3d 1221 (Pa.Super.Ct.2015), in which the Superior Court of 

Pennsylvania, the state’s intermediate appellate court, reviewed a comparable 

protective order and ruled that the prohibition was “not concerned with the content

of Appellant’s speech but with, instead, the target of his speech, namely, Plaintiff, 

whom the court has already deemed the victim of his abusive conduct.” (Emphasis 

sic.) Id. at 1229. 

{¶ 35} But the “target” of such speech necessarily concerns the subject 

matter of the speech. It “cannot be justified without reference to the content of the 

prohibited communication.” People v. Relerford, 2017 IL 121094, 422 Ill.Dec. 

774, 104 N.E.3d 341, 350 (2017). It requires an examination of its content, i.e, the 

person(s) being discussed, to determine whether a violation has occurred and is 

concerned with undesirable effects that arise from “ ‘the direct impact of speech on 

its audience’ or ‘[l]isteners’ reactions to speech,” McCullen, 573 U.S. at 481, 134 

S.Ct. 2518, 189 L.Ed.2d 502, quoting Boos, 485 U.S. at 321, 108 S.Ct. 1157, 99 

L.Ed.2d 333. We therefore cannot accept appellees’ attempt to characterize the 

order banning all posted speech about them as merely a content-neutral regulation. 

{¶ 36} Nor can the prohibitions in paragraph nine be considered merely

incidental to a regulation of conduct. See O’Brien, 391 U.S. at 376-377, 88 S.Ct. 

1673, 20 L.Ed.2d 672 (act of burning Selective Service registration certificate could 

be prosecuted for violation of law prohibiting destruction of registration certificates 

even if conduct was intended to express an idea or belief). On the contrary, the 

regulation of expressive activity is the obvious purpose of paragraph nine of the 

CSPOs here. 

{¶ 37} We therefore conclude that the prohibition of certain future speech 

by paragraph nine is a content-based regulation. 

B. Exception for speech integral to criminal conduct 

{¶ 38} Having determined that speech was being regulated on the basis of 

its content does not necessarily mean, however, that it cannot be regulated. The 
January Term, 2020 

15 

First Amendment does “ ‘permit[] restrictions upon the content of speech in a few 

limited areas.’ ” United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 

L.Ed.2d 435 (2010), quoting R.A.V. v. St. Paul, 505 U.S. 377, 382-383, 112 S.Ct. 

2538, 120 L.Ed.2d 305 (1992). Those categories include: “advocacy intended, and 

likely, to incite imminent lawless action; obscenity; defamation; speech integral to 

criminal conduct; so-called ‘fighting words,’; child pornography; fraud; true 

threats; and speech presenting some grave and imminent threat the government has 

the power to prevent * * *.” (Citations omitted.) United States v. Alvarez, 567 U.S. 

709, 717, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (plurality opinion). 

{¶ 39} In this case, the court of appeals suggested—but did not actually 

decide—that Rasawehr’s restrained speech could have been “ ‘integral to criminal 

conduct,’ ” 2019-Ohio-57, at ¶ 40, quoting Alvarez at 721, and thus within a class 

of “unprotected speech,” id. at ¶ 39. Appellees more directly contend that 

Rasawehr’s speech is “categorically unprotected” because it is “speech integral to 

criminal conduct.”3 For support, appellees cite Giboney v. Empire Storage & Ice 

Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949). In Giboney, unionized ice 

peddlers picketed against Empire Storage and Ice Company after it refused to agree 

not to sell ice to nonunion peddlers, a practice that would have violated Missouri’s 

antitrade-restraint law. When Empire sued to enjoin the picketing, the union 

answered by asserting a constitutional right to picket for the purpose of forcing 

Empire to discontinue its sale of ice to nonunion peddlers. 

{¶ 40} Upholding the trial court’s picketing injunction against the union, 

the United States Supreme Court ruled that all of the union’s activities “constituted 

a single and integrated course of conduct, which was in violation of Missouri’s 

valid law.” Id. at 498. The court expressly rejected the suggestion “that the 

constitutional freedom for speech and press extends its immunity to speech or 

 

3. Appellees do not contend that Rasawehr’s restrained speech could be subject to regulation on the 

other possibly applicable categories such as defamation or true threats. 
SUPREME COURT OF OHIO

 16 

writing used as an integral part of conduct in violation of a valid criminal statute.” 

Id. According to the court, “the injunction did no more than enjoin an offense 

against Missouri law, a felony.” Id. Because the “sole, unlawful immediate 

objective” of the expressive activity was to “induce Empire to violate Missouri law 

by acquiescing in unlawful demands,” prohibiting that expressive activity did not 

violate rights protected by the First Amendment. Id. at 502. The court explained: 

[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, evidenced, or carried out by means of language, 

either spoken, written, or printed. Such an expansive interpretation 

of the constitutional guaranties of speech and press would make it 

practically impossible ever to enforce laws against agreements in 

restraint of trade as well as many other agreements and conspiracies 

deemed injurious to society. 

(Citations omitted.) Id. 

{¶ 41} According to appellees, Rasawehr’s postings are integral to the

criminal conduct of menacing by stalking in violation of R.C. 2903.211(A). But 

there has been no judicial determination here that future postings Rasawehr might 

make will be integral to the commission of the crime and thus unprotected by the 

First Amendment. “The special vice of a prior restraint is that communication will 

be suppressed, either directly or by inducing excessive caution in the speaker, 

before an adequate determination that it is unprotected by the First Amendment.” 

Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 390, 

93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). Speech may not be categorically suppressed 

by means of a prior restraint absent a judicial determination that the speech would 

be unprotected by the First Amendment. See Freedman v. Maryland, 380 U.S. 51, 
January Term, 2020 

17 

58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (“because only a judicial determination in 

an adversary proceeding ensures the necessary sensitivity to freedom of expression, 

only a procedure requiring a judicial determination suffices to impose a valid final 

restraint”). 

{¶ 42} Our decision in O’Brien v. Univ. Community Tenants Union, Inc., 

42 Ohio St.2d 242, 327 N.E.2d 753 (1975), is instructive. In that case, the plaintiff, 

a landlord, alleged that the defendant, a tenant-organization, had compiled and 

published a list of landlords about whom defendant had received the most 

complaints. The plaintiff alleged that the list contained false and defamatory 

information about him. The plaintiff’s complaint requested various forms of 

injunctive relief that would enjoin the defendant from disseminating allegedly 

defamatory information in the future. The trial court dismissed the complaint 

because the plaintiff “had not ‘met the heavy burden of justifying prior restraint.’ ” 

Id. at 244. The court of appeals reversed, determining that if the trial court found 

the defendant’s statements to be defamatory, “then the question whether defendant 

should be enjoined from future repetition of the same statements could properly be 

before the court.” Id. at 245. 

{¶ 43} We affirmed the judgment of the court of appeals in O’Brien, stating: 

Once speech has judicially been found libelous, if all the 

requirements for injunctive relief are met, an injunction for restraint 

of continued publication of that same speech may be proper. The 

judicial determination that specific speech is defamatory must be 

made prior to any restraint. Curtis Publishing Co. v. Butts (1967), 

388 U.S. 130, 149 [87 S.Ct. 1975, 18 L.Ed.2d 1094]. 

In an analogous area, dealing with obscene materials, the 

United States Supreme Court, in Southeastern Promotions v. 
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Conrad [420 U.S. 546, 558-559, 95 S.Ct. 1239, 43 L.Ed.2d 448 

(1975)], said: 

“* * * The presumption against prior restraints is heavier—

and the degree of protection broader—than that against limits on 

expression imposed by criminal penalties. Behind the distinction is 

a theory deeply etched in our law: a free society prefers to punish 

the few who abuse rights of speech after they break the law than to 

throttle them and all others beforehand. It is always difficult to 

know in advance what an individual will say, and the line between 

legitimate and illegitimate speech is often so finely drawn that the 

risks of freewheeling censorship are formidable. See Speiser v. 

Randall, 357 U.S. 513 (1958) [78 S.Ct. 1332, 2 L.Ed.2d 1460].” 

Speaking of allowable remedies available, that same court, 

in Kingsley Books, Inc. v. Brown (1957), 354 U.S. 436, 437, [77 

S.Ct. 1325, 1 L.Ed.2d 1469,] said: 

“* * * ‘limited injunctive remedy,’ under closely defined 

procedural safeguards, against the sale and distribution of written 

and printed matter found after due trial to be obscene [may be 

allowed] * * *.” (Emphasis added.) 

Id. at 245-246. 

{¶ 44} Because the plaintiff’s complaint in O’Brien sought to prospectively 

enjoin further publication of allegedly defamatory information, we held that such 

relief could be awarded if the plaintiff’s allegations—“that files of a false and 

defamatory nature are being used to coerce the public into refusing to rent from 

him”—could be substantiated. Id. at 246. Thus, O’Brien confirms that before a 

court may enjoin the future publication of allegedly defamatory statements based 
January Term, 2020 

19 

on their content, there must first be a judicial determination that the subject 

statements were in fact defamatory. Id. 

{¶ 45} In the case before us, however, there has been no such judicial

determination that future postings by Rasawehr will be an integral means to 

criminal conduct and thus unprotected by the First Amendment. 

{¶ 46} Even if the trial court here determined solely for purposes of civil 

protection that Rasawehr violated R.C. 2903.211(A), there has been no valid 

judicial determination that any future expression Rasawehr might make to others

through posted messages would necessarily be integral to the criminal conduct of 

menacing by stalking in violation of R.C. 2903.211(A). Even if past speech that 

an offender made to a person that the offender knew would cause that person to 

believe that the offender would cause physical harm to that person or would cause 

mental distress to that person could be considered speech that was integral to the 

criminal conduct of menacing by stalking, we do not believe that this principle may 

be applied categorically to future speech—that is by its nature uncertain and 

unknowable—directed to others. 

{¶ 47} Because of the uncertainty inherent in evaluating future speech that 

has yet to be expressed, the record here cannot justify a content-based prior restraint 

on speech when there has been no valid judicial determination that such speech will 

be integral to criminal conduct, defamatory, or otherwise subject to lawful 

regulation based on its content. 

{¶ 48} When it comes to speech, the application of a criminal law should 

generally occur after the contested speech takes place, not before it is even uttered. 

As observed by the United States Supreme Court in Carroll v. President & 

Commrs. of Princess Anne, 393 U.S. 175, 180-181, 89 S.Ct. 347, 21 L.Ed.2d 325 

(1968), 
SUPREME COURT OF OHIO

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Ordinarily, the State’s constitutionally permissible interests are 

adequately served by criminal penalties imposed after freedom to 

speak has been so grossly abused that its immunity is breached. The 

impact and consequences of subsequent punishment for such abuse

are materially different from those of prior restraint. Prior restraint 

upon speech suppresses the precise freedom which the First 

Amendment sought to protect against abridgement. 

{¶ 49} For their part, appellees rely on federal-court decisions that have 

upheld the constitutionality of the federal stalking statute, 18 U.S.C. 2261A.4

 See 

United States v. Gonzalez, 905 F.3d 165 (3d Cir.2018); United States v. Osinger, 

753 F.3d 939 (9th Cir.2014); United States v. Sayer, 748 F.3d. 425 (1st Cir.2014); 

United States v. Petrovic, 701 F.3d 849 (8th Cir.2012). But those decisions are 

inapposite here inasmuch as they involved prosecutions and convictions under that 

federal statute for past speech that was integral to the course of criminal conduct. 

By contrast, there has been no criminal prosecution and conviction of Rasawehr for 

having engaged in menacing by stalking in violation of R.C. 2903.211 or any other 

offenses relating to his statements about appellees. More importantly, none of those 

cases involved prior restraints on future speech like those imposed here by 

paragraph nine. 

 

4. 18 U.S.C. 2261A(2) prohibits whoever 

with the intent to kill, injure, harass, intimidate, or place under surveillance with 

intent to kill, injure, harass, or intimidate another person, uses the mail, any 

interactive computer service or electronic communication service or electronic 

communication system of interstate commerce, or any other facility of interstate 

or foreign commerce, to engage in a course of conduct that— 

(A) places that person in reasonable fear of the death of or serious bodily 

injury to a person * * * or 

(B) causes, attempts to cause, or would be reasonably expected to cause 

substantial emotional distress to a person * * *. 
January Term, 2020 

21 

{¶ 50} Because there was no valid judicial determination that any future 

Internet postings that Rasawehr might make about appellees would necessarily be 

integral to the criminal conduct of menacing by stalking in violation of R.C. 

2903.211(A), or that such postings would be defamatory or otherwise proscribable, 

that future expression would not be excluded categorically from First Amendment 

protection. The trial court’s CSPOs thus represent prior restraints that are 

unconstitutional unless they can survive strict scrutiny. See Toledo Blade Co., 125 

Ohio St.3d 149, 2010-Ohio-1533, 926 N.E.2d 634, at ¶ 21. 

C. Application of strict scrutiny 

{¶ 51} A content-based regulation of protected speech cannot be sustained 

unless it is the least restrictive means to achieve a compelling state interest. See 

Reed, __ U.S. __, 135 S.Ct. at 2231, 192 L.Ed.2d 236; McCullen, 573 U.S. at 478, 

134 S.Ct. 2518, 189 L.Ed.2d 502; Playboy Entertainment Group, Inc., 529 U.S. at 

813, 120 S.Ct. 1878, 146 L.Ed.2d 865; Sable Communications of California, Inc.,

492 U.S. at 126, 109 S.Ct. 2829, 106 L.Ed.2d 93. Assuming, without deciding, that 

there is a compelling state interest in protecting civil-stalking victims from fear of 

imminent physical harm or mental distress, the means chosen here are not the least 

restrictive. The scope of paragraph nine, which prohibits Rasawehr from posting 

anything about appellees is remarkable. It has no defined limits. Anything that 

Rasawehr might ever post about appellees, no matter how innocuous, would 

conceivably subject him to proceedings for contempt of court if not criminal 

prosecution under R.C. 2919.27 for violating the CSPO. By any measure, this 

regulation of speech is demonstrably overbroad. 

{¶ 52} In Flood v. Wilk, 430 Ill.Dec. 96, 2019 IL App (1st) 172792, 125 

N.E.3d 1114, 1116-1117 (2019), the pastor of a church obtained a “stalking no 

contact order” that, among other things, prevented the respondent from 

“communicating, publishing or communicating, in any form any writing naming or 
SUPREME COURT OF OHIO

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regarding [the pastor], his family or any employee, staff or member” of the pastor’s 

church congregation. Vacating that part of the order, the appellate court stated: 

Since the trial court’s order in the instant case targeted respondent’s 

speech based on its subject matter—the church or its members—it

would be considered a content-based restriction and presumptively 

prohibited. An injunction that prohibits respondent from writing 

anything at all about his pastor or any other member of his church 

congregation—whether flattering or unflattering, fact or opinion, 

innocuous or significant, and regardless of the medium of 

communication—certainly would not be that rare case that survives 

strict scrutiny. It is all but impossible to imagine a factual record 

that would justify this blanket restriction on respondent’s speech. 

Paragraph (b)(5) of the order is substantially and obviously 

overbroad, and it violates respondent’s first-amendment right to free 

speech. 

(Emphasis sic.) Id. at 1126. 

{¶ 53} Not unlike the order in Flood that prohibited the respondent from 

writing anything about the pastor or any employee or member of the church, the 

orders issued here prohibited Rasawehr from writing anything about appellees “on 

any social media service, website, discussion board, or similar outlet or service.” 

Nothing in the record before us justifies such an utterly sweeping restriction on 

First Amendment expression. Nor does it justify the attempt to limit its censorship 

to postings about the deaths of appellees’ husbands or appellees’ alleged culpability 

in their husbands’ deaths. 

{¶ 54} Appellees maintain that paragraph nine was narrowly tailored to

limit the exercise of free speech to only the degree necessary to achieve the 
January Term, 2020 

23 

compelling state interest of protecting them from “stalking and harassment” and 

that no less restrictive alternative would be as effective. But we fail to see how an 

order that prohibits Rasawehr from posting anything about appellees either protects 

them from certain mental distress or prohibits only distress-causing speech. To the 

contrary, it prohibits everything. And while the restraint on postings about 

appellees concerning their alleged culpability in the deaths of their husbands bears 

at least some factual relation to the allegations contained in their petitions, it suffers 

from the same fatal flaw by suppressing all expression about that topic regardless 

of whether it causes mental distress cognizable under R.C. 2903.211(D)(2)(a) and 

(b). Neither the trial court nor the court of appeals made these First Amendment 

sensitive determinations in this case. 

{¶ 55} We by no means discount any mental distress and embarrassment 

that appellees experienced, nor do we doubt that future statements may cause 

additional mental anguish. But speech does not lose its protected character simply 

because it may be upsetting and cause distress or embarrassment. See Snyder v. 

Phelps, 562 U.S. 443, 458, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (antimilitary 

and homophobic statements near funeral for serviceman killed in action was 

protected despite jury’s finding that it was “outrageous” as an element of intentional 

infliction of emotional distress); Natl. Assn. for the Advancement of Colored People 

v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 73 L.Ed.2d 1215 

(1982) (“Speech does not lose its protected character * * * simply because it may 

embarrass others or coerce them into action”). 

{¶ 56} Moreover, appellees are not without civil tort remedies to redress 

any cognizable injuries they claim to have suffered as a result of Rasawehr’s 

statements about them, including but not necessarily limited to actions for 

defamation. But the special statutory process to provide expedited civil relief to 

stalking victims under R.C. 2903.214 serves primarily to protect victims from 

imminent threats of physical harm and mental distress. It is not designed to be a 
SUPREME COURT OF OHIO

 24 

shortcut or substitute for conventional civil remedies and thus is not the appropriate 

means to obtain the panoply of monetary damages and injunctive relief that may 

properly be awarded through such proceedings. In any case, the potential abuse of 

speech rights in the future cannot justify the blanket prohibition imposed here on 

Rasawehr’s speech before it has even been uttered. 

{¶ 57} Here, the court of appeals observed that “not all speech is of equal 

First Amendment importance,” 2019-Ohio-57, at ¶ 41, and that “[i]t is speech on 

‘ “matters of public concern” ’ that is ‘at the heart of the First Amendment’s 

protection,’ ” id., quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 

U.S. 749, 758-759, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), quoting First Natl. Bank 

of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), 

citing Thornhill v. Alabama, 310 U.S. 88, 101, 60 S.Ct. 736, 84 L.Ed 1093 (1940). 

Appellees similarly maintain, in defending the CSPOs under strict scrutiny, that the 

value of Rasawehr’s speech concerning private matters is “decidedly low” when 

balanced against the interest in upholding the CSPOs. They rely on Snyder, in 

which the United States Supreme Court reviewed a jury verdict that held a church 

and its leaders liable for the emotional distress caused by their protest using 

antimilitary statements and homophobic slurs near an American serviceman’s 

funeral. The court ruled that “[w]hether the First Amendment prohibits holding 

[the church] liable for its speech in this case turns largely on whether that speech is 

of public or private concern, as determined by all the circumstances of the case.” 

Id. at 451. Because the speech at issue in Snyder involved matters of public 

concern, to include “the political and moral conduct of the United States and its 

citizens” and “homosexuality in the military,” id. at 454, it was “entitled to ‘special 

protection’ ” and the court set aside the jury’s verdict against the church, id. at 458-

459. 

{¶ 58} In their brief to this court, appellees claim that in contrast to Snyder, 
January Term, 2020 

25 

Rasawehr’s speech (1) consists of a barrage of personal attacks

blended with just enough public criticism to create an illusion of 

public debate; (2) is, by Rasawehr’s own admission, motivated by a 

personal grudge against his family evidenced by the content of his 

writings; and (3) did not take place on a public street. 

As appellees must concede, however, Rasawehr’s statements purported to implicate 

local public officials in an alleged criminal conspiracy. The United States Supreme 

Court has said that “ ‘speech on public issues occupies the highest rung of the 

hierarchy of First Amendment values, and is entitled to special protection.’ ” 

Snyder, 562 U.S. at 452, 131 S.Ct. 1207, 179 L.Ed.2d 172, quoting Connick v. 

Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Such speech is 

protected by the First Amendment even though the speaker or writer was motivated 

by hatred or ill-will. See Hustler Magazine v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 

876, 99 L.Ed.2d 41 (1988) (“while * * * a bad motive may be deemed controlling 

for purposes of tort liability in other areas of the law, we think the First Amendment 

prohibits such a result in the area of public debate about public figures”); see also

Garrison v. Louisiana, 379 U.S. 64, 73, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). 

{¶ 59} In any case, our role here is not to pass judgment on the truth, 

plausibility, or First Amendment value of Rasawehr’s allegations. To the extent 

his statements involve matters of both private and public concern, we cannot 

discount the First Amendment protection afforded to that expression. We most 

assuredly have no license to recognize some new category of unprotected speech 

based on its supposed value. Rejecting such a “free-floating test for First 

Amendment coverage,” the United States Supreme Court declared in Stevens, 559 

U.S. at 470, 130 S.Ct. 1577, 176 L.Ed.2d 435, that the First Amendment’s 

guarantee of free speech “does not extend only to categories of speech that survive 

an ad hoc balancing of relative social costs and benefits.” “Our decisions * * * 
SUPREME COURT OF OHIO

 26 

cannot be taken as establishing a freewheeling authority to declare new categories 

of speech outside the scope of the First Amendment.” Id. at 472. 

{¶ 60} Prior restraints on First Amendment expression are presumptively 

unconstitutional. Because paragraph nine of the CSPOs is content based and does 

not survive strict scrutiny, we hereby vacate those portions of paragraph nine that 

enjoin Rasawehr from future postings about appellees or that express, imply, or 

suggest that appellees were culpable in the deaths of their husbands. 

IV. CONCLUSION 

{¶ 61} The CSPOs issued here undoubtedly sought to provide some 

measure of relief to appellees for the mental distress they experienced because of 

Rasawehr’s public accusations. But the means chosen to provide that relief—with 

its virtually unlimited restraint on the content of future postings about appellees—

went far beyond anything that the factual record before us can sustain and the First 

Amendment can tolerate. We therefore reverse the judgment of the Third District 

Court of Appeals to the extent that it upheld the trial court’s CSPOs enjoining future 

postings about appellees or postings that express, imply, or suggest that appellees 

were culpable in the deaths of their husbands, and we vacate those provisions of 

paragraph nine that prohibited such future postings and remand this matter to the 

trial court for further proceedings consistent with this opinion. 

Judgment reversed in part 

and cause remanded. 

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, and 

STEWART, JJ., concur. 

_________________ 

Miltner Reed, L.L.C., Ryan K. Miltner, and Kristine H. Reed, for appellees. 

Sawan & Sawan, L.L.C., and Dennis E. Sawan, for appellant. 
January Term, 2020 

27 

 Legal Aid Society of Cleveland, Alexandria M. Ruden, Haley K. Martinelli, 

and Tonya D. Whitsett; and Micaela C. Deming, urging affirmance for amici curiae 

Legal Aid Society of Cleveland and Ohio Domestic Violence Network. 

 Scott & Cyan Banister First Amendment Clinic, UCLA School of Law and 

Eugene Volokh; and Law Office of Karin L. Coble and Karin L. Coble, urging 

reversal for amici curiae Electronic Frontier Foundation, 1851 Center for 

Constitutional Law, and Professors Jonathan Entin, David F. Forte, Andrew 

Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret 

Tarkington, Aaron H. Caplan, and Eugene Volokh. 

 Fritz Byers, urging reversal for amicus curiae Block Communications, Inc. 

_________________