From today's Ohio Court of Appeals opinion in Olthaus v. Niesen, written by Judge Pierre Bergeron and joined by Judges Candace Crouse and Marilyn Zayas (for more on the general legal issue, which has arisen as to allegations of Communism as well as racism, see this post):
During the wave of racial justice demonstrations that swelled in the summer of 2020, the Cincinnati City Council convened a series of open meetings. At an open forum before the council's budget and finance committee meeting in June 2020, Officer Olthaus was assigned to provide crowd control and security.
During an interaction with defendant-appellee Terhas White, who was participating in a demonstration outside the council's chambers, Officer Olthaus flashed an "OK" symbol, pinching together his thumb and index finger. He maintains that he made this gesture in response to Ms. White asking him about the status of his fellow officer who had recently left the area after an interaction with demonstrators.
She and the other defendants-appellees (collectively, "Defendants"), however, saw things very differently. In various ways, 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 sign….
[Olthaus] alleges that Ms. White published social media posts referring to him as a "white supremacist kkkop" and "white supremacist piece of shit," and that Julie Niesen made posts in a similar vein. He also alleges that Ms. White knowingly submitted a false complaint with the city's Citizen Complaint Authority ("CCA"), accusing him of using a "white power" hand signal on the job. He accuses Ms. Gilley of filing a similar complaint with the CCA in 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."
Finally, he claims that James Noe posted a profane insult about him on social media in the context of saying that he flashed "white power symbols to Black speakers," and that Mr. Noe posted a "deceptively edited photograph" of Officer Olthaus designed to portray 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 also claims Mr. Noe threatened to publicize his personal identifying information on social media.
Olthaus sued for defamation and related torts, but the court concluded that the defendants' speech was opinion rather than a false statement of fact:
