“Respondent Is Prohibited from Posting Any Information/Comments … on Any Internet Site Regarding the Petitioner [the Mayor’s Sister] and … Her Immediate or Extended Family”

[UPDATE: The order has now been rescinded.]

Johanna Hamrick runs the Berea Post blog, and had been candidate for mayor and city council president in Berea, Ohio. She had posted various things critical of Norma Kleem, the sister of the Berea mayor, and (among other things) Berea Commission on Aging member and, apparently, the organizer of the Berea July Fourth parade, such as:

DON’T FORGET YOUR TOMATOES!

As the Fourth of July Parade is approaching we are getting so excited here at The Berea Post. It is sure to be a special year as we have heard of only one parade participant having a discriminatory letter.

All persons receive a letter to be a part of the parade. As you guessed it, you have to return your form to Norma Kleem. In prior years she has limited who is allowed in the gate, what vehicles, and many other obstacles have been put up. This year the letter was the same as prior years, all except one. One persons letter stated that only Berea City Fire Trucks were allowed in. Why? Well if the City Club gets their donated fire truck in, someone could look better on the fire truck. Yes, one letter stated this information. How low can you go? Well the little dictator wants control. Little dictator wants to make sure any opponent is denied like in past years.

Please Sunday July 3rd, DO NOT FORGET YOUR TOMATOES!!! I truly would love to chuck one right at someone in THAT camp. It would be quite enjoyable. Happy Independence Day Berea.

Norma Kleem sought a protection order against Hamrick based on this post and other conduct (including, allegedly, following Kleem in her car, and trying to hit Kleem with her car). On Monday, Judge Nancy Margaret Russo granted the order, stating, among other things,

Respondent is prohibited from posting any information/comments/threats/or any other data on any internet site, regarding the petitioner and any member of her immediate or extended family…. Respondent is known to post as Lilly on the cleveland.com blog and Berea-Post; she is prohibited from blogging/posting on any site @ petitioner including but not limited to these blogs.

Presumably the “@” means “about,” though in any event the first sentence already bars Hamrick from saying anything about Norma Kleem. And given the “any member of her … extended family” clause, it looks like she can’t post about Mayor Kleem, either.

This order is a blatant First Amendment violation, it seems to me. Even if the injunction restricted only speech that allegedly fell into a First Amendment exception (such as libel or threats or obscenity), such an injunction would almost never be constitutional unless it was issued following a final decision on the merits that the speech indeed falls into a First Amendment exception — and there was no final decision on the merits here: This is a preliminary injunction issued at an ex parte hearing at which defendant wasn’t even present.

But beyond this, the injunction doesn’t purport to bar only speech within one of the First Amendment exceptions: It bars defendant from making any statements about Kleem, including true statements and pure opinions. Such a broad speech restriction would be unconstitutional even if it applied only to a purely private citizen, but it is even more clearly so when it bars all statements about someone who is apparently pretty substantially involved in local civic affairs. And of course the unconstitutionality is still clearer given that it bars defendant from speaking about Norma Kleem’s brother, the mayor, as well, though I think the order would remain unconstitutional even if the “extended family” clause were removed.

For other examples of such unconstitutional orders, see here and here.