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The First Amendment & Protection Orders: Easy to Get, Easy to Misuse

By: April Campbell

In theory, protection orders are a good thing.  Giving teeth to the safety concerns of true victims of crime, these orders allow police to arrest and criminally charge abusers and stalkers who keep coming for their prey.   Theoretically. 

But like most things, reality is a far cry from theory.  The fact is, these orders are often misused.  We defense attorneys know this too well.  The ease by which courts hand out protection orders catalyzes their misuse: a neighbor files for one because he doesn’t like when another neighbor looks in his direction (real case).  A spouse conveniently files for one right before a holiday to be able to keep the kids (real case).  Or your client—determined as innocent by a jury in his criminal case, is still handed one after the win based on the issue he just won (also a real case).  These orders can restrict where your client walks, who they talk to, or even what they can say.    

If this is the situation your client is facing, consider the First Amendment.  Rasaehr did just that in the Supreme Court of Ohio’s most recent protection order decision and won. Bey v. Rasaehr, 2020-Ohio-3301 (June 16, 2020). Recognizing that the ease of obtaining a protection order is both virtue and vice, the Supreme Court struck down a provision that did not allow Rasaehr to post future comments on the internet about two family deaths.  It did so on First Amendment grounds, finding that prohibiting Rasaehr from future-posting was a “prior restraint” of his First Amendment Right to Free Speech. 

The takeaway: consider each provision of the protection order, to see whether it holds water under the First Amendment.  As Rasaehr’s case teaches us, it might not.    

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