Readers here will be sick of this, but we're going to have to keep beating it into the general populace's head: trademark law is about preventing confusion as to the source of a good or service. The idea is to keep buyers from being fooled into buying stuff from one company or person while thinking they were buying it from another. That's basically it.

It's a lesson still to be learned, and one which a federal judge has imparted on famed jewelry maker Tiffany & Co. The backstory here is that back in 2013, on Valentine's Day of all days, Tiffany & Co. sued Costco over the latter's advertisement of "Tiffany" style rings.

U.S. District Judge Laura Taylor Swain said Tiffany deserves $11.1 million, plus interest, representing triple the lost profit from Costco's trademark infringement, plus the $8.25 million in punitive damages awarded by a jury last October.

The Manhattan judge also permanently barred Costco from selling anything that Tiffany did not make as "Tiffany" products, unless it uses modifiers suggesting that the products have, for example, a Tiffany "setting," "set" or "style."

The reason for that last bit is that Costco's argument against the judgement was that its references to "Tiffany" were about an iconic setting for engagement rings. Tiffany & Co. did indeed make that setting famous, but tons of non-Tiffany rings are sold with that style. In fact, it's become such a generic term in the industry after nearly 150 years of use that articles discussing the setting essentially note that there is no trademark concern to have here. From Forbes, for instance:

The formula was immensely successful. So much so that the term “Tiffany setting” has reached Kleenex status—it’s now used colloquially throughout the jewelry industry to describe any multi-pronged solitaire setting, Tiffany or no.

So, even if there were a trademark claim to be had here at one point in history, that ship has sailed. Except in the lawsuit against Costco, the court disagreed, leading to an appeal by Costco.

And with that appeal comes a reversal of the lower court's decision.

A federal appeals court Monday overturned a $21 million verdict against Costco Wholesale Corp. for trademark infringement over its marketing of diamond rings labeled as “Tiffany,” ruling that the lower court judge who had issued an initial ruling in the case had failed to adequately consider contrary evidence.

Costco’s evidence “was sufficient to raise a question as to whether potential buyers of Costco’s diamond engagement rings were actually confused by the appearance of the word “Tiffany” on Costco’s signs,” the ruling said.

Now, this was the overturning of a summary judgement by the lower court. In other words, this ruling is essentially stating that the lower court improperly kept this from going to a full trial, where Costco would be allowed to present evidence that its use was proper given the generic nature of the term, as well as evidence that there was little to no customer confusion to be had. And that evidence is quite good, actually.

Here again we go back to the beginning of this post, where we lay out that trademark law is supposed to be about keeping customers from being fooled as to the source of a good or service. Well, Costco decided to run a real life experiment on this of its use of the term "Tiffany."

It said after the complaint was filed, Costco sent a letter to all customers who had purchased the engagement rings with Tiffany settings and reminded them that its return policy entitled them to return their rings for a full refund at any time, but only 1.3% of its customers returned their rings.

Tiffany & Co. is already making noises about trying this case again, but hopefully it will instead simply bask in the glory that is a setting so popular that it's become generic. If not, I'd expect Costco to win out on the merits.

Washington DC responded to widespread protests following the killing of George Floyd with a set of police reforms that tried to address some systemic problems in the district's police department, starting with its lack of transparency and accountability.

The reform bill -- passed two weeks after George Floyd's killing -- placed new limits on deadly force deployment, banned the Metropolitan PD from acquiring military equipment through the Defense Department's 1033 program, and mandated release of body-camera footage within 72 hours of any shooting by police officers. The names of the officers involved are covered by the same mandate, ensuring it won't take a lawsuit to get the PD to disclose info about officers deploying deadly force.

But there's a lawsuit already in the mix -- one that hopes to keep the public separated from camera footage and officers' names. Unsurprisingly, it's been filed by a longtime opponent of police accountability.

The Washington, D.C., police union said on Monday it asked a court to block the mandatory release of body camera footage and names of police officers involved in shootings.

According to the union, releasing the names of officers will do bad things to the good names of cops who kill people.

“The release of the body-camera footage and names of officers will unjustly malign and permanently tarnish the reputation and good name of any officer that is later cleared of misconduct concerning the use of force,” the union said in a statement.

First off, it's almost impossible to "permanently tarnish" a cop's reputation. Even the worst cops often have little trouble resuming their law enforcement careers after engaging in egregious misconduct. They may have to shop their resumes around a little bit, but lots of PDs and Sheriffs' offices are more than willing to hire bad cops no longer welcome at their original agency.

Second, nothing about this should hinge on whether or not the force deployment was justified. If an officer is later cleared of wrongdoing, they'll be able to go back to work. If not, they'll probably still be able to go back to work -- either with the DCPD or with any other agency more interested in staffing their forces than performing due diligence.

And it's a little rich for the union to ask that officers' names be withheld on the off chance they might be found innocent. The names of people arrested or cited are public records, even if they're ultimately never convicted of a crime. Suing to get cops held to a lower standard is a terrible use of taxpayer funds. Public sector unions collect dues from paychecks and build their litigation war chests using donations from officers -- all of which can ultimately be traced back to the same public the union is trying to keep in the dark.

The lawsuit [PDF] (which inexplicably isn't included in multiple articles about the lawsuit) raises the specter of vengeful vigilantes hunting down cops who killed or maimed friends or family members.

When officers justifiably use force against a criminal suspect, the immediate public release of the officer's name and the body-worn camera footage will allow the suspect and their associates to identify the officer and potentially seek retribution against the officer and his or her family.

This is a ridiculous reason to withhold officers' names. This is Hollywood rationale -- an uninspired trope that's best left in an undeveloped screenplay. It's not that it never happens. It's that it happens so rarely it can't be raised as a plausible argument for blanket secrecy.

The lawsuit also argues -- equally implausibly -- that there's an inherent right to privacy contained in actions performed by public servants in public.

The release of the officer's name and other identifying information contained in the body-worn camera footage will further impermissibly invade the officer's fundamental right to privacy.

Doesn't seem there would be that much privacy in performing public service, especially when someone gets serviced to death by an officer's force deployment. But that's the argument the union will make to shield its fan base from public criticism. Hopefully, the DC court will route this lawsuit to its OUT box as quickly as possible so DC residents can start benefiting from the transparency the district has finally forced on its police force.

This week we've got another cross-post, with the latest episode of The Neoliberal Podcast from the Progressive Policy Institute. Host Jeremiah Johnson invited Mike, along with PPI's Alec Stapp, to discuss everything about encryption: the concept itself, the attempts at laws and regulations, and more.

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ICE continues to not care what anyone thinks of it. Its tactics over the past few years have turned it into one of the federal government's most infamous monsters, thanks to its separation of families, caging of children, unfettered surveillance of undocumented immigrants, its fake university sting created to punish students trying to remain in the country legally, its sudden rescinding of COVID-related distance learning guidelines solely for the purpose of punishing students trying to remain in the country legally… well, you get the picture.

Perhaps it's fitting ICE is buying tech from a company that appears unconcerned that most of the public hates it. Clearview -- the facial recognition software that matches uploaded facial images with billions of images scraped from the open web -- is one of the latest additions to ICE's surveillance tech arsenal.

Immigration and Customs Enforcement (ICE) signed a contract with facial recognition company Clearview AI this week for “mission support,” government contracting records show (as first spotted by the tech accountability nonprofit Tech Inquiry). The purchase order for $224,000 describes “clearview licenses” and lists “ICE mission support dallas” as the contracting office.

That its new partner is being sued in multiple states (including a suit filed by the Vermont Attorney General) doesn't appear to concern ICE, which is itself often on the receiving end of lawsuits. Clearview may be making good on its promise to pull out of the private market and sell only to government agencies, but that just means it will be only governments using unproven AI and scraped images to pursue investigations and arrest people.

Clearview's statement to The Verge about its contract with ICE makes it appear this is all about the children:

“Clearview AI’s agreement is with Homeland Security Investigations (HSI), which uses our technology for their Child Exploitation Unit and ongoing criminal investigations,” Clearview AI CEO Hoan Ton-That said in an emailed statement to The Verge. “Clearview AI has enabled HSI to rescue children across the country from sexual abuse and exploitation.”

Clearview leans on the children here, but the statement says a couple of other interesting things I'm sure Ton-That would rather slide by unnoticed. First: "and ongoing criminal investigations." ICE considers every undocumented immigrant to be a criminal, which means the agency is going to use this software to track down people in the US for committing the civil violation of staying in the country without the proper paperwork. ICE has not been able to find enough dangerous immigrants to make the administration's public statements about rampaging hordes of bad hombres come true, so it has decided to go after everyone, including students here on visas.

Second, Clearview claims it has "enabled" HSI to "rescue children across the country." I'd say we'd just have to take its word on this but we certainly don't have to take its word on this because it's said things like this in the past only for the named law enforcement agency to contradict Clearview's claims when asked for comment. That may be what Clearview hopes its partnership with ICE/HSI will do, but it's difficult to believe the recently signed contract has already produced results or that ICE/HSI are really using this mostly to fight child sexual exploitation rather than just uploading photos of brown people and hoping for hits.

Either way, we can safely conclude both partners here suck. ICE is bad and keeps getting worse, and Clearview isn't ever going to improve and is presumably still scraping sites for "content" it can sell to its customers.

The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important – and, as we'll explain here, why Section 230 is as well.

To recap, protester Kevin Alfaro became upset by a police officer's behavior at a recent Black Lives Matter protest in Nutley, NJ. The officer had obscured his identifying information, so Alfaro tweeted a photo asking if anyone could identify the officer "to hold him accountable."

Several people, including Georgana Szisak, retweeted that tweet. The next thing they knew, Alfaro, Sziszak, and several other retweeters found themselves on the receiving end of a felony summons pressing charges of "cyber harassment" of the police officer.

As we've already pointed out, the charges were as pointless as they were spurious, because they themselves directly did the unmasking of the officer's identity, which the charges maintained was somehow a crime to ask for. Over at the Volokh Conspiracy, Eugene Volokh took further issue with the prosecution, and in particular its application of the New Jersey cyber harassment statute against the tweet. Particularly in light of an earlier case, State v. Carroll (N.J. Super. Ct. App. Div. 2018), he took a dim view:

N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person … knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.

According to the criminal complaint, the government's theory is that the post "caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property."

But the Tweet (and the retweet) aren't "lewd, indecent, or obscene." ... [And] if the "lewd, indecent, or obscene" element isn't satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn't apply regardless of whether it was posted with the intent to "caus[e] Det. Sandomenico to fear that harm will come to himself, family and property."

These "cyber harassment" statutes are often problematic, targeting for punishment what should be protected and often socially valuable critical speech. Cases like these, where they get applied to criticism of state power, highlight the Constitutional concern. Being able to speak out against the state is at the heart of why we have the First Amendment, and laws interfering with that ability offend the Constitution. In this case, even if the New Jersey law had been drafted in a sufficiently narrow way to not be unconstitutional on its face by – in theory – only targeting speech beyond the protection of the First Amendment, applying it in this way to speech that should have been protected made it unconstitutional.

But while it's bad enough that the original tweeter had been targeted by the police for his speech, the aspect of the story that is most worrying is that police also targeted for prosecution people who had simply retweeted the original tweet. Section 230 should have barred such prosecutions. And before we so casually chuck out the statute, as so many propose, we need to understand why it should have applied here, and why it is so important to make sure that it still can in the future.

The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it's the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution. Especially online, where speaking requires the facilitation of others, we need both: the First Amendment to make it possible to speak, and Section 230 to make it possible to be heard.

This case illustrates why it is so important to have both, and why Section 230 applies, and must apply, to more than just big companies. Here, someone tweeted protected speech to notify the community of concerning police behavior. Section 230 ensured that the Internet platform – in this case, Twitter – could exist to facilitate that speech. And it's good that Section 230 meant that Twitter could be available to play that role. But Alfaro only had 900 followers; Twitter helped him speak, but it was the retweeters who turned that speech into discourse by helping it reach the community. They had just as important a role to play in facilitating his speech as Twitter did, if not even more so.

It's important to remember that the statutory text of Section 230 in no way limits its protection to big Internet companies, or even to companies at all. It simply differentiates between whoever created the expression at issue (and can thus be held to answer for it) and who facilitated its distribution online (who therefore can't be). Given how important that facilitation role is in having meaningful public discourse, we need to ensure that everyone who performs it is protected. In fact, it may be even more important to ensure that individual facilitators can maintain this protection than the larger and more resourced corporate platforms who can better weather legal challenges.

Think about it: think about how many of us share content online. Many of us may even share far more content created by others than we create ourselves. But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.

And that chilling is not a good thing. One could certainly argue that people should take more care when they share content online and do the best they can in vetting it before sharing it, to the extent it is possible. Of course, it could also be fairly said that many people should use their right to free speech more productively than they necessarily do. But the reason we protect speech, even low-value speech, is because we need to make sure that the good, socially beneficial speech we depend on to keep our democracy healthy can still get expressed too. Which is also why we have Section 230: it is not possible to police all the third-party created content we intermediate, and if we want to make sure that the good, socially beneficial content can get through, to reach the people who need to hear it, then we need to make sure that we don't have to. When we snip away at Section 230's protection, or limit its application, we obstruct that spread and curtail the discourse society needs. We therefore do so at our peril.

Obviously in this case Section 230 did not prevent the attempted prosecution. Nor did the First Amendment, and that the police went after anyone over the tweet was an unacceptable abuse of authority that imposed an enormous cost. Discourse was damaged, and the targeted Twitter users may now think twice before engaging in online discourse at all, much less discourse intending to keep state power in check. These are costs that we, as a society, cannot afford to bear.

But at least by having both of these defenses available, the terrible toll this attempted prosecution took was soon abated. Think about how much worse it would have been had they not been. And ask why that is a future we should be continuing to spend any effort trying to invite. Our sole policy goal should be to enhance our speech protections, to impose costs on those who would undermine public discourse through their attempts at abusive process. The last thing we should be doing is taking steps to whittle away at them and make it any easier to chill discourse than it already is, and cases like this one, where people were trying to speak out against abuses of power, illustrate why.

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Last week there was quite a lot of news paid to Apple kicking Fortnite out of the iOS app store for violating the rules by avoiding Apple's in-app payment setup (out of which Apple takes 30%). Epic, who had been hinting at this for a while, introduced a direct payment offering that effectively avoided the 30% charge that Apple (and Google) require from developers.

There have been arguments over the last decade or so since Apple implemented its policy requiring subscription revenue to go through Apple's system -- but this is probably the biggest fight yet. Epic was clearly expecting Apple to do this because almost immediately after Fortnite was removed from the app store, Epic first released a Nineteen Eighty-Fortnite parody ad, mocking Apple's infamous 1984 Superbowl ad.

Almost immediately, Epic also sued Apple over the removal in a legal complaint that was clearly prepared well in advance. Represented by some of the top antitrust lawyers in the country, and weighing in at 65 pages, Epic had spent some time preparing for this fight. To drive this point home, the lawsuit itself references 1984 in the opening paragraph, tying into Epic's marketing campaign:

In 1984, the fledgling Apple computer company released the Macintosh—the first mass-market, consumer-friendly home computer. The product launch was announced with a breathtaking advertisement evoking George Orwell’s 1984 that cast Apple as a beneficial, revolutionary force breaking IBM’s monopoly over the computing technology market. Apple’s founder Steve Jobs introduced the first showing of the 1984 advertisement by explaining, “it appears IBM wants it all. Apple is perceived to be the only hope to offer IBM a run for its money . . . . Will Big Blue dominate the entire computer industry? The entire information age? Was George Orwell right about 1984?”

Fast forward to 2020, and Apple has become what it once railed against: the behemoth seeking to control markets, block competition, and stifle innovation. Apple is bigger, more powerful, more entrenched, and more pernicious than the monopolists of yesteryear. At a market cap of nearly $2 trillion, Apple’s size and reach far exceeds that of any technology monopolist in history.

The coordination between product, marketing, and legal shows that Epic was well aware of what it was doing.

And, almost immediately after all of that, Google also kicked Fortnite out of its app store, and Epic sued Google too. Rather than opening with the 1984 line (which wouldn't apply to Google), in this case, Epic's lawyers leaned on the "Don't Be Evil" line:

In 1998, Google was founded as an exciting young company with a unique motto: “Don’t Be Evil”. Google’s Code of Conduct explained that this admonishment was about “how we serve our users” and “much more than that . . . it’s also about doing the right thing more generally”. Twenty-two years later, Google has relegated its motto to nearly an afterthought, and is using its size to do evil upon competitors, innovators, customers, and users in a slew of markets it has grown to monopolize. This case is about doing the right thing in one important area, the Android mobile ecosystem, where Google unlawfully maintains monopolies in multiple related markets, denying consumers the freedom to enjoy their mobile devices—freedom that Google always promised Android users would have.

Google acquired the Android mobile operating system more than a decade ago, promising repeatedly over time that Android would be the basis for an “open” ecosystem in which industry participants could freely innovate and compete without unnecessary restrictions.2 Google’s CEO, Sundar Pichai, represented in 2014 that Android “is one of the most open systems that I’ve ever seen”.3 And Andy Rubin, an Android founder who is described by some as the “Father of Android”, said when he departed Google in 2013 that “at its core, Android has always been about openness”.4 Since then, Google has deliberately and systematically closed the Android ecosystem to competition, breaking the promises it made. Google’s anti-competitive conduct has now been condemned by regulators the world over.

Both lawsuits argue that this is an antitrust violation. Also, in both cases, Epic makes it clear (again, strategic marketing at work) that it's not seeking monetary damages, but is demanding that both companies change their practices regarding what cut they take from in-app payments via the app stores. Of course, if it gets rid of having to hand over 30% to Apple and Google, Epic stands to make a lot more money (even if it then discounts in-app purchases that are done directly, as it did with this update).

Of course, when various mutli-billion dollar giants battle in court, you know there's a lot happening behind the scenes. From a pure narrative perspective, you can see Epic's point. Fortnite's success on mobile is not about the benefits provided by the app stores on either of the major mobile operating systems. And, to be clear, Epic had explored this area in the past. Two years ago it tried to avoid the Google Play Store to protest the 30% cut (which is possible, though clunky, on Android), but eventually gave in and went back into the Play Store.

From Apple's standpoint, Epic's move put it in a no-win position. If it let Epic do this with Fortnite, tons of other developers would claim that Epic was getting preferential treatment, and thus letting Epic's move slide would create massive problems in its own way. But pulling Fortnite down from app store created a new set of problems as well (including this antitrust suit). Then Google was similarly put in an impossible situation. Right after seeing what happened with Apple, Google basically had to make a similar call, knowing that it had to decide if it was going to stand firm like Apple (and face a certain lawsuit) or cave and create a whole host of other problems.

From Epic's vantage point, this was a shot that the company had to take. The company's CEO, Tim Sweeney, has a history of not liking rent-seeking by middlemen. And while the antitrust fight can be costly, a win (either by settlement or by the results of litigation) would be a huge win, and a loss would effectively leave Epic in the same position it's in now (though with some quite hefty legal bills that the company can easily afford).

As for the legal arguments... I think it's an uphill climb. The public narrative may sound good, but the actual antitrust laws are going to make this quite difficult to win.

To some extent, this comes down to one of the key differences between the mobile universe -- which is much more closed, limited, and controlled by gatekeepers -- and the wider, more open internet ecosystem. And, to their credit, both Apple and Google have done a lot to build the entire smartphone/tablet ecosystem with iOS and Android, though it is disappointing that over time Google has progressively moved away from its more "open" promises regarding Android. That said, being more closed and proprietary has allowed both companies (and especially Apple) to argue that their devices are a lot more secure than computers and an internet where anything goes.

Also, much of this fight ignores that in the console world, 30% is also the standard fee. It certainly looks like, pretty much across the board, devices used for gaming have decided that the entrance fee to get on a device is about 30% of any in-app purchases. As John Gruber notes, Sweeney seems to handwave around the dedicated gaming consoles argument -- suggesting that somehow the 30% makes sense there, because of the nature of those consoles. But that does seem to undermine his overall argument (and may also doom his legal argument).

I don't know what the right answer is here, and I don't find myself particularly rooting for any one of these giant companies in this fight. I wish mobile platforms were more open, but I understand why they're not. I also don't think that the activity Google and Apple engage in will trip the wire under current antitrust law. And thus, if Apple and Google do stand firm, I think Epic loses in the long run. But it can be a very long run, and it might just be worth it for Epic to try to force its view of the mobile app market onto that world.

But, of course, to some extent, everything is a negotiation. And there's a part of me that wonders if Epic isn't just hoping to use this as an "initial offer" to get Apple and Google to agree to a favorable deal to allow Fortnite back into the app stores. That, of course, would raise a bunch of other questions -- including other developers demanding similar treatment. But I could see some sort of tiered system worked out, whereby Apple and Google agree that at certain levels of revenue, the cuts they take drop. Just to get this lawsuit out of the way.

No matter how you feel though, this is going to be a big fight to watch over the coming months and years. It's almost as fascinating as Fortnite itself.

While fifth-generation (5G) wireless will result in faster, more resilient networks (once it's finally deployed at scale years from now), the technology has been over-hyped to an almost comical degree. Yes, faster, lower latency networks are a good thing, but 5G is not as paradigm-rattling as most wireless carriers and hardware vendors have led many in the press to believe. 5G is more of a useful evolution than a revolution, but it has become the equivalent of magic pixie dust in tech policy circles, wherein if you simply say "it will lead to faster deployment of 5G!" you'll immediately add gravitas to your otherwise underwhelming K Street policy pitch.

Here on planet Earth, most consumers couldn't care less about 5G. In most surveys U.S. consumers -- who pay some of the highest prices in the world for mobile data -- say their top priority is usually lower prices. That's increasingly true during a pandemic and economic crisis, where every dollar counts.

Enter Verizon, which, instead of reading the market, has been repeatedly trying to charge $10 extra for 5G despite consumers not seeing the value. Verizon executives had fooled themselves into thinking a "premium" upgrade warranted a premium price tag. But consumers quickly realized the extra money simply wasn't worth it. For one, Verizon's network is barely available (one study stated a full 5G signal was available about 0.4% of the time). First generation 5G devices are also expensive and tend to suffer from crappier battery life. All for admittedly faster speeds most users don't think they need yet.

With consumers not really that interested, and no other wireless carriers attempting to charge extra anyway, Verizon has been forced to finally back away from the $10 monthly surcharge after flirting with it since last year:

"The collapse of Verizon's attempt to charge extra for 5G doesn't come as much of a surprise. No other provider in the US – including Verizon's own MVNO partners – is charging extra for 5G.

However, the development has significant implications for the 5G sector in general because it means operators cannot make any extra money from 5G when selling it for consumers' smartphones, despite the money they're plowing into deploying the technology.

Granted that's not really true. With the FCC having recently dismantled itself at lobbyist behest (including the demolition of net neutrality rules), there's not a whole lot keeping Verizon from nickel-and-diming U.S. wireless consumers in a wide variety of creative ways. The company already sells "unlimited" data plans that prohibit HD and 4K unless you pay more, so the precedent has been set and the door is open wide to a variety of spurious new surcharges.

That's particularly true given that captured U.S. regulators in the Trump administration keep signing off on terrible mergers that are guaranteed to reduce competition and raise rates. So while Verizon has struggled to extract its pound of flesh via an additional 5G surcharge, they'll surely come up with some ingenious new fees down the road. And U.S. regulators and Congress, by and large, will not only be fine with that, but they'll help Verizon pretend it's the pinnacle of innovation. After all, we wouldn't want to lose the "race to 5G," right?

Eugene Volokh reports an Ohio court has hit a number of defendants in a libel lawsuit with an unconstitutional order forbidding them from posting the name of the man suing them. It's no ordinary man, though. It's a police officer who several attendees of a Cincinnati city council meeting have both identified and claimed used a racist hand sign while interacting with them.

A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.

Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the “ok” sign at a City Council meeting in June – a meeting held to address concerns by those in the Black Lives Matter Movement.

They posted about it on Facebook and other online forums, leading the officer to file his lawsuit.

Nothing all that unusual about this. Someone with pretty thin skin was offended that other people said mean things about him and decided to sue about it. That the plaintiff is a police officer is a little different, but not unheard of. That the police officer talked a judge into allowing him to file pseudonymously and place his affidavit under seal is a bit stranger. From there, it just gets stranger and more unconstitutional

This is from Volokh:

I've also learned that the judge has issued a temporary restraining order—without any participation on the defendants' part—ordering them not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information." The order doesn't define "personal identifying information," but the only Ohio statute that does define term (the identity fraud statute) defines it to include a person's "name."

Thus, the bloggers are banned from mentioning the police officer at all. They aren't just banned from libeling him; even a post conveying accurate information, or expressing an opinion, about the police officer is forbidden, if it mentions the officer's name.

This order [PDF] only targets future posts. That's some prior restraint right there. And while the judge may have meant no one can publish anything like the cop's home address or personal phone number, the lack of specificity allows it to be read as banning the use of the officer's name.

Not that it's all that difficult to figure out who this officer is. Multiple attendees (who are now defendants in this lawsuit) posted the officer's name online and linked to what appears to be the officer's Facebook account. Searching through the defendants' social media profiles brings up the posts referring to the officer by name.

The officer's Facebook page has had all of its posts deleted. The header image has been replaced with this, which appears to be a direct response to those accusing him of flashing the "ok" sign at the city council meeting.

Officer Ryan Olthaus -- who was involved in the controversial killing of Dontez O'Neal in 2012 -- goes by the name "Michael Ryan" on his Facebook page. The pseudonym being used in the lawsuit against these social media users is "M.R."

That all seems to add up to Officer Pseudonym. His lawyer seems to feel the current, possibly unconstitutional order doesn't go far enough, though. The officer would also like to see the defendants forced to remove any previous posts about him. His attorney argues the posts are libelous because [checks filing] they were made by people who don't like cops.

Defendants posted these statements on their social media platforms, accusing Plaintiff of being a white supremacist in a climate of severe hostility toward police officers. Further, at least one Defendant threatened to dox Plaintiff -- to reveal his personal identifying information online -- seemingly for sport. Other posts include, “Fuck SWAT,” “Fuck 12,” “ACAB”, “1312” and many similar statements evidencing the Defendants’ hatred and malice toward the police, including the Plaintiff.

The court hasn't ruled that any of the posts being sued over are actually libelous. So, at this point, the officer has no legal basis to demand their removal. The officer has already been granted one broad restriction on the posting of his personal information (which includes his name) by the suit's defendants. Now, he wants to go even further. And he wants to do it while keeping his name from being tied to his dubious litigation.

Eugene Volokh (along with the Cincinnati Enquirer) are asking the judge to unseal the documents. And hopefully the defendants will challenge the restraining order and make the court rethink (or perhaps consider thoughtfully for the first time) its blanket ban on publishing this officer's personal information.