Thread by @FriendsofBones

UCLA law prof: "My excellent pro bono local counsel @jeffreynye and I have put together an updated motion in this case, which is now captioned M.R., a Cincinnati Police Officer v. Niesen."

[1.] The affidavit should be unsealed
[2.] The plaintiff must proceed under his real name

https://twitter.com/VolokhC/status/1294017271325577217

"[1.] The affidavit should be unsealed.

"The plaintiff is a public official who is not only trying to silence a critic—he has gotten a prior restraint against the further publication of his name, and he is seeking a broader prior restraint as well."

reason.com/2020/08/13/my-…

'"The United States Supreme Court has repeatedly recognized that police officers are public officials," Soke v. The Plain Dealer (1994), 69 Ohio St.3d 395, 397, and the public has an interest in "anything which might touch on a[ public] official's fitness for office."'

"This extends to an interest in monitoring a police officer's conduct at trial, including the officer's sworn statements. Id.)

"But even if Ohio citizens' free speech about public officials can be restricted this way, the decision should not be made based on secret evidence."

"The open courtroom is a bedrock principle of the American judicial system," and the Ohio Bill of Rights includes "a constitutional requirement that 'all courts shall be open ….'" Woyt v. Woyt, 8th Dist. Cuyahoga no. 107312, 2019-Ohio-3758, ¶ 59.

reason.com/2020/08/13/my-…

"It should only be in the rarest of circumstances that a court seals a case from public scrutiny. When a litigant brings his or her grievance before a court, that person must recognize that our system generally demands the record of its resolution be available for review." Id.

See Sup.R. 45(A) ("Court records are presumed open to public access."); In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (observing that "adult civil actions, are presumptively open to the public"); State ex rel. The Repository v. Unger, 28 Ohio St.3d 418, 421 (1986).

'The reason that public access is so important is that the right of access gives the public "confidence that standards of fairness are being observed" and "that established procedures are being followed." State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146'

"The constitutional guarantees of open courts "were inspired by a profound distrust of secret judicial proceedings. Indeed, it is often said that justice cannot survive behind walls of silence."

reason.com/2020/08/13/my-…

'"…historical testimony to the fact that justice perishes when clandestine methods flourish. Democracy blooms where the public is informed and stagnates where secrecy prevails." State ex rel. The Repository, 28 Ohio St.3d at 423-24'

reason.com/2020/08/13/my-…

"The public has a right, and indeed a small-d democratic obligation, to supervise the courts; the officers of the courts, including the attorneys appearing before the courts"

reason.com/2020/08/13/my-…

"It is inappropriate for the plaintiff to seek and obtain a remedy—especially an apparently unconstitutional remedy like a prior restraint on the publication of the plaintiff's name, or an order requiring the defendants to remove published statements—based on secret evidence."

If there are any highly confidential passages in the affidavit, they should (at most) be redacted rather than having the affidavit be sealed altogether. A court must "use the least restrictive means available [to restrict public access]…Sup.R. 45(E)(3)." Woyt, 2019-Ohio-3758…

"[2.] The plaintiff must proceed under his real name.

"The plaintiff's name should also be unsealed, and this case should proceed using the parties' full names, as nearly all libel cases in Ohio do."

reason.com/2020/08/13/my-…

"Both the Ohio and Federal Rules of Civil Procedure require that every complaint list the names and addresses of all parties involved in the suit. Civ.R. 10(A) and Fed.R.Civ.P. 10(A)…."

reason.com/2020/08/13/my-…

'[T]his rule demonstrates "the principle that judicial proceedings, civil as well as criminal, are to be conducted in public." … "Identifying the parties to the proceeding is an important dimension of publicness."'

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'The public has a "legitimate interest in knowing which disputes involving which parties are before the federal courts that are supported with tax payments and exist ultimately to serve the American public."'

reason.com/2020/08/13/my-…

"Plaintiffs' use of fictitious names runs afoul of the public's common law right of access to judicial proceedings." Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir. 2000); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008)…

'To be sure, pseudonymity is sometimes allowed, but only in rare cases. Doe v. Bruner set forth four factors, based on federal circuit precedents, for evaluating pseudonymity requests: "(1) whether the plaintiffs seeking anonymity are suing to challenge governmental activity;'

"(2) whether prosecution of the suit will compel the plaintiffs to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiffs to disclose an intention to violate the law, thereby risking criminal prosecution;"

reason.com/2020/08/13/my-…

"and (4) whether the plaintiffs are children." 2012-Ohio-761, ¶ 7 (quoting Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004), which in turn was citing Doe v. Stegall, 653 F.2d 180, 185–186 (5th Cir. 1981)). And none of these factors is present here."

reason.com/2020/08/13/my-…

"Nor can pseudonymity be justified simply on the grounds that revealing a party's name might conceivably put the party at risk of retaliation, whether professional, social, or even criminal."

reason.com/2020/08/13/my-…

"If plaintiff is allowed to proceed a pseudonym, then any police officer who is sued for allegedly unconstitutional searches and seizures would have the same claim to pseudonymity."

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"Finally, the cases the plaintiff cited in his motion for leave to seal the affidavit and proceed under a pseudonym do not establish a right to do either."

reason.com/2020/08/13/my-…

"Those cases—State ex rel. Keller v. Doe and Kallstrom v. City of Columbus—are about what portions of a police officer's personnel or HR file are "public records" under Ohio's Public Records Act, and whether a defendant can obtain them either under the Public Records Act …"

"Keller held, for example, that "the names of the officers' children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information and the like should not be available to criminal defendants." State ex rel. Keller v. Doe (1998), 85 Ohio St. 3d 279, 282"

"There are no criminal defendants here, and this case isn't about what portion of an HR file is a public record. This case is about whether a police officer can obtain preliminary injunctive relief…without revealing either his name or his sworn statements that he's offering…."