- Reprinted from Plain Dealer article from 1-12-23 written by Cory Shaffer
Beachwood, police chief file defamation lawsuit to find out who has been anonymously criticizing her
Published: Jan. 12, 2023, 8:00 a.m. Updated: Jan. 12, 2023, 8:18 a.m.
CLEVELAND, Ohio — The city of Beachwood and its police chief, Katherine McLaughlin, went to court to unmask the identity of an anonymous online critic. In a lawsuit filed in Cuyahoga County Common Pleas Court, the city says that “John Doe” is behind a series of accounts that left comments on the Beachwood Police Department Facebook page and sent an email in September to members of city council that accused the chief of, among other things, having “improper relationships” with subordinates and mistreating officers.
Council in November approved spending $25,000 to hire Minc Law, a firm that specializes in online defamation and harassment, to pursue the lawsuit on McLaughlin’s behalf. Council made the decision after receiving complaints from an employee that the comments were creating a hostile work environment, according to a video of the Nov. 7 meeting posted on the city’s website.
Law Director Stewart Hastings said at the meeting that the employee has threatened to sue if the city did not pursue the action. Hastings did not identify that employee as McLaughlin, and the city declined to comment further when asked by cleveland.com and The Plain Dealer last week.
City officials said in court filings and at a council meeting in November that they believe the commenter is either a member of the police department or someone posing as one, and they plan to use the lawsuit to reveal the identity of poster through the discovery process.
“We have an obligation to ensure that the words or actions of a supervisor, manager or co-worker do not negatively impact another employee’s ability to complete their work,” Beachwood Council President Alec Isaacson said in a statement to cleveland.com and The Plain Dealer. “If this investigation shows that the author of the content was not a supervisor, manager or co-worker, then everything stops -- while it’s sometimes hard to hear, there is room for legitimate criticism.”
McLaughlin joined the Beachwood department in 2021 as the deputy chief. She became its leader in November of that year. She previously had been the chief of the Cleveland Metroparks Police Department.
One Beachwood councilman and two attorneys specializing in the First Amendment say that the filing of the lawsuit raises serious free speech concerns and could open the city up to litigation for violating the commenter’s rights to anonymously criticize the government.
Adam Steinbaugh, an attorney at the Philadelphia-based First Amendment advocacy group Foundation for Individual Rights and Expression, said that none of the comments referenced in the lawsuit, filed last month, seem to amount to defamatory statements.
“You have a right to speak anonymously and have that anonymity protected, unless it’s unprotected speech,” Steinbaugh said. “If they go through and learn it’s not an employee, their anonymity is still blown at that point.”
Councilman Mike Burkons accused the city of seeking to stifle criticism. “The goal is to unmask whoever is sending these emails so they can punish them, so there’s a deterrent,” he said. The case is assigned to Judge Andrew Santoli.
Beachwood officials for months refused to make copies of the comments public. Burkons filed a complaint in the Ohio Court of Claims in November to force them to release copies of the comments, which the city maintained at the time were not public records. The city argued that releasing the records could amount to republishing defamatory comments and could make it legally liable.
The city released the comments to cleveland.com and The Plain Dealer last week. The messages include three Facebook posts from two accounts and two emails in the same thread from the same user.
One Facebook post from a user listed as “Amin Yashed” said, in a comment on a story about Beachwood police winning a state grant to promote officer wellness, that “Considering the Chief, the officers will definitely need the mental health counseling.”
Another comment from the same user said that “there would be a no-confidence vote” if the department conducted a blind survey and guaranteed those who voted would face no repercussions.
“But I’m sure she would find a way to screw them over,” the commenter said.
Two posts from a user named “John Marconi” included one reply to Yashed’s comment about the no-confidence vote that said that promoting John Resek to deputy chief was bad for the department’s morale and that the department had a hard time finding officers to transfer there from other departments.
The other post again mentioned Resek and accused him of not wearing his duty belt.
“That is unless he’s out for a very long private lunch with [redacted] ... or a ride to Chagrin Falls together ... Hope there are pre-nuptials in place,” the comment said.
The post continued: “Maybe if Beachwood, Ohio, says that they are an ‘objectively’ well-led city enough times it will become true, or someone will at least believe it.”
There are no comments attributed to a third Facebook account that is named in the complaint.
Viewers can no longer see the comments on Facebook because the department stopped allowing comments on its page.
The complaint references in most detail the Sept. 19 email from a person using the email address “missmarples21″ on the secure email server Proton. The message was sent to Mayor Justin Berns and all five council members. The sender also copied Bob Jacobs, an editor at Cleveland Jewish News, the local Fraternal Order of police lodge and McLaughlin.
“The cops working for BPD have been suffering for too long. Losing awful chiefs who are shockingly replaced by even worse ones,” it begins.
The email accuses McLaughlin of telling officers during her first meeting that “I’m here to clean up this s—show” and “you have to treat officers like children.”
The email then contends that McLaughlin of taking credit for the department receiving a grant that another employee applied for and “throwing that officer back to patrol when they dare ask to be paid fairly,” and of shutting off comments on the department’s Facebook page for “critical-yet-true” posts about her.
“When the Chief of Police BREAKS THE LAW and VIOLATES CONSTITUTIONAL RIGHTS....... and has no consequences, what message are you sending to the officers???” the email said.
“PLEASE finally do something to give BPD hope, some reason to risk their lives for a city that continues to ignore how bad things are and how much worse they keep getting. Please start trying to actually turn this sinking ship around for the sake of EVERYONE,” it said. “Imagine if your spouse / your brother / your sister / your son / your daughter were an officer... what would you do?”
In a separate email to Burkons on the same thread, the user claimed that “the cops learned” that Hastings and McLaughlin shut down the comments. The email also discussed Hastings’ past employment with the city of Cleveland.
The city’s stance
Hastings said that if the city’s assumption that the person is an employee is correct, then the person will be subjected to disciplinary proceedings once he or she is identified.
At the Nov. 7 council meeting to discuss hiring Minc to investigate the identity of the commenters, Isaacson and Hastings said that “more than one” employee had filed a hostile work environment complaint over the comments, and the city was at risk of a lawsuit if it did not investigate the claims.
“As an employer, we have an obligation to provide a workplace that is free of discrimination, bullying and hostility,” Isaacson said in a statement. “If we don’t effectively handle those claims, we place the city at risk of lawsuit(s) from the employees who believe they are impacted.”
Hastings said that the proper channel for an employee to report a complaint anonymously is through the city’s human resources department.
“These are very explicit, scandalous accusations against an employee, which, even if true, should not be splashed around the workplace,” Hastings said. “And we do not believe they are true.”
In his statement, Hastings reiterated Isaacson’s claims that the city has a duty to investigate allegations of workplace harassment.
First Amendment concerns
Andrew Geronimo, a professor at Case Western Reserve University who runs a First Amendment law clinic that represents defendants for free, said that he believed the posts are not defamatory.
Because McLaughlin is a public official, she would have to show that the commenter not only knew that the claims were untrue but that the person made the claims with malice and meant to inflict harm on her.
“That’s a very high burden for a public official to meet,” he said.
Steinbaugh, the Philadelphia attorney, said that the First Amendment covers criticism that is not true, as long as the person honestly believed it was true.
“The First Amendment protects our right to be wrong about public officials,” Steinbaugh said.
Both Geronimo and Steinbaugh said everyone has the right to anonymously criticize the government.
And they acknowledged that employees of governments have restrictions on their free speech rights when publicly discussing matters involving their employment. But Geronimo said that restriction gives the employer the right to conduct an internal investigation and then discipline the employee -- not sue them for defamation.
“It’s troubling to me that a government entity would use its power to access the courts and try to chill some of this criticism based solely on an allegations that to me don’t look like anything,” Geronimo said.
History repeats itself
This is not the first time that Beachwood police have used legal filings to reveal the identities of anonymous critics.
In 2017, then-Chief Gary Haba sent a memo to the city’s then-law director that said he suspected he was, among other things, being followed. Haba suggested the same people were behind anonymous emails detailing his past conduct at the police department.
The department assigned two of its detectives to identify the owners of four email addresses whose owners “had inside information” about Haba’s career and various internal department policies, according to an 11-page report detailing what turned into an 11-month criminal investigation that resulted in no charges.
The detectives subpoenaed Google, AT&T, Yahoo and other tech companies for records, including the user’s login, password, security questions and answers to those questions, to identify the owner of the account, according to copies of the subpoenas. They also sought banking records. The subpoenas also informed the companies that they were “directed” not to disclose information regarding the subpoena to anyone other than Beachwood police because it risked compromising the investigation.
Detectives also went to a Walmart in Maple Heights, where they suspected one of the email account owners had purchased a prepaid cellphone. The detectives requested surveillance footage of the person who bought the phone, but a security guard told them no such video existed.
The detectives were unable to determine the identity one of the account owners. They identified a possible link between the owner of one of the accounts to a city employee. One of the other critics was a Beachwood resident who frequented city council meetings and had no connection to the police department. They determined another email account likely belonged to someone in a particular family who also had no connection to Beachwood.
The identities and names of people interviewed as part of the investigation were redacted.
Hastings, when asked if Beachwood residents who lodge anonymous complaints should expect to have their government seek out their identity,
“Beachwood would only investigate an anonymous communication if the individual claims to be an employee, is not commenting on a matter of public interest and the comments disrupt the office, undermine those in authority, and attempt to destroy close working relationships between employees,” Hastings said in an emailed statement.
Hastings could not point to a statement from any of the accounts in either case where the commenter claimed to be an employee.
Instead, he argued that the email about McLaughlin “purports to quote the chief and purporting to have inside information” about the department.
Hastings did not mention any other comments. He also did not respond to an emailed question about how the quotes and information could be considered “inside information” if the city’s lawsuit maintained that the statements were false and defamatory.
Steinbaugh said that the department would have had reason to investigate Haba’s claim that he was being followed. But he said the documents released so far did not make a clear connection between those claims and the anonymous emails.
“It’s one thing to have a suspicion about a criminal act,” Steinbaugh said. “It’s another thing to say, ‘my anonymous critics are the people responsible for those criminal acts.’ ”
Steinbaugh added, “I’m concerned this is a police department using the criminal process to identify anonymous critics.”