State ex rel. Cincinnati Enquirer v. Baker Ross

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Cincinnati Enquirer v. Baker Ross, Slip Opinion No. 2026-Ohio-510.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2026-OHIO-510

THE STATE EX REL . CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP

MEDIA, INC., ET AL. v. BAKER ROSS, JUDGE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Cincinnati Enquirer v. Baker Ross, Slip Opinion

No. 2026-Ohio-510.]

Prohibition—Prior restraint on media publication—To impose prior restraint,

respondent trial-court judge must hold a hearing, receive evidence, and

permit those affected to be heard—Respondent may not prevent reporting

of proceedings in open court—Peremptory writ granted.

(No. 2026-0118—Submitted February 11, 2026—Decided February 17, 2026.)

IN PROHIBITION

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,

DEWINE, BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ.

SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Relators, the Cincinnati Enquirer, a division of Gannett GP Media,

Inc.; Copley Ohio Newspaper, Inc. (d.b.a. the Akron Beacon Journal); and

Gatehouse Media Ohio Holdings II, Inc. (d.b.a. the Columbus Dispatch) (together,

“the newspapers”), filed a complaint for a writ of prohibition against respondent,

Judge Susan Baker Ross of the Summit County Court of Common Pleas. The

newspapers seek to prevent Judge Baker Ross from enforcing an order issued in an

ongoing criminal trial purporting to limit what the newspapers may record and

publish regarding the proceedings.

{¶ 2} At or around the time that the newspapers filed their amended

complaint challenging the order, Judge Baker Ross issued an amended order that

resolves portions of the parties’ dispute. Judge Baker Ross filed a motion to dismiss

under Civ.R. 12(B)(6), attaching the amended order and arguing primarily that the

issuance of the amended order moots the newspapers’ claims. However, because

the amended order does not render the newspapers’ claims moot, we deny Judge

Baker Ross’s motion to dismiss and instead issue a peremptory writ of prohibition

preventing Judge Baker Ross from enforcing certain provisions of the amended

order.

{¶ 3} Specifically, we issue a peremptory writ preventing Judge Baker Ross

from enforcing (1) the provision of the amended order prohibiting publication of

jurors’ or prospective jurors’ personal information (a) until she holds a hearing and

makes the necessary findings from evidence in the record and (b) to the extent that

it prohibits dissemination of information revealed in open court or from publicly

available court records, and (2) the provision of the amended order pertaining to

objecting witnesses to the extent that it (a) prohibits representatives of the media

from attending and being heard at a witness’s objection hearing, (b) prohibits

recording of objection hearings that occur in open court, and (c) prohibits recording

of defendants when they are not on the stand.

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January Term, 2026

I. FACTS AND PROCEDURAL HISTORY

A. The Original Order

{¶ 4} Judge Baker Ross is presiding over the highly publicized criminal trial

of Charles Jones and Mike Dowling. Jones and Dowling, both former officials of

FirstEnergy Corp., are accused of participating in the bribery of certain Ohio public

officials, which allegedly resulted in FirstEnergy’s receipt of “favorable regulatory

treatment” and “significant financial benefits.” According to the newspapers, the

trial is of “enormous public interest,” in part because the defendants have included

on their witness lists Ohio’s governor and former lieutenant governor. The

newspapers allege that the trial commenced on Tuesday, January 27.

{¶ 5} The day before trial began, Judge Baker Ross issued, in each

defendant’s case, an identical “Media Participation and General Decorum Order”

(the “original order”). The original order states that it is intended “to provide for

orderly proceedings” and contains provisions relating to, among other things, court

security, parking, courtroom demeanor, attire, remote viewing, and media

participation. It also provides that violations of the order may result in sanctions,

including “temporary or permanent exclusion” of the offender or the media

organization the offender represents, contempt, and “[s]uch other sanctions as

deemed necessary . . . to ensure the due and proper administration of justice.”

B. The Newspapers’ Original and Amended Complaints

{¶ 6} The newspapers filed their original complaint on Wednesday, January

28, and an amended complaint on Friday, January 30. As narrowed by the

newspapers’ opposition to the motion to dismiss, the amended complaint

challenges two provisions of the original order.1

1. The newspaper initially challenged a third provision of the original order, which purported to

limit the newspapers’ “property or proprietary interest” in the photos, videos, and audio recordings

made of the trial; it further required that those recordings be “[made] available” upon the request of

the court or of either party (the “proprietary provision”). Because no comparable provision appears

in Judge Baker Ross’s amended order, and because in their response to the motion to dismiss the

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{¶ 7} First, the original order purported to prevent the newspapers from

publishing “anything that could be used to personally identify any juror or

prospective juror” (the “jury provision”). The original order states that the jury

provision is intended to “preserve the jury system” and prevent jurors or their

families from being “harassed or jeopardized.” The jury provision explicitly “does

not prohibit members of the media from publishing the number of males or females,

or other demographic data, which will not personally identify a particular juror or

prospective juror.”

{¶ 8} Second, the original order provided that each witness has the right to

object to being recorded or photographed and further states that any witness so

objecting “shall not be recorded” by any means (the “witness provision”). The

newspapers challenged the witness provision for the first time in their amended

complaint.

{¶ 9} The newspapers’ amended complaint seeks an “immediate[]”

peremptory writ of prohibition, or, in the alternative, an alternative writ of

prohibition, preventing Judge Baker Ross from enforcing the jury provision and the

witness provision of the original order. The amended complaint asserts that the

jury provision is, “on its face, a prior restraint of speech” that is not narrowly

tailored, that it fails to balance the privacy interest of the jurors with the right of

access to criminal trials, and that it is “impermissibly vague.” With respect to the

witness provision, the newspapers argue that it cannot stand, because it violates

Sup.R. 12(B)(2), which addresses the recording of court proceedings, by

“automatically grant[ing] a witness’[s] objection to being recorded . . . without a

finding based upon evidence” and without allowing the media to be heard.

newspapers appear to have abandoned this claim, this opinion does not analyze the proprietary

provision.

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January Term, 2026

{¶ 10} On Monday, February 2, the court issued an entry ordering Judge

Baker Ross to respond to the amended complaint by Tuesday, February 3. 2026-

Ohio-301.

C. The Amended Order and Judge Baker Ross’s Motion to Dismiss

{¶ 11} Judge Baker Ross filed a motion to dismiss the amended complaint

on February 3. In her motion, Judge Baker Ross primarily argues that the

newspapers’ claims are moot because, on the same day the newspapers filed their

amended complaint, Judge Baker Ross issued an amended order that supersedes the

challenged order (the “amended order”). She further argues that the newspapers’

claims do not fall under the “capable of repetition, yet evading review” exception

to the mootness doctrine because the issues raised in the amended complaint “were

cured by the [amended] order,” which she attaches to her motion.

{¶ 12} Finally, she says that the newspapers possess adequate remedies in

the ordinary course of the law to challenge the amended order, in the form of a

mandamus action to compel access to records, appeal from any contempt or

sanction order imposed for violation of the order, and, under the amended order,

postdischarge access to prospective juror names and posttrial access to juror names

once disclosed.

{¶ 13} The newspapers timely opposed the motion to dismiss. They

contend that their challenges to the jury provision and witness provision are not

moot under two exceptions to the mootness doctrine: (1) the case presents “‘a

debatable constitutional question or a matter of great public or general interest,’”

quoting Tschantz v. Ferguson, 57 Ohio St.3d 131, 133 (1991), and (2) their claims

are “‘capable of repetition, yet evading review,’” quoting State ex rel. Dispatch

Printing Co. v. Geer, 2007-Ohio-4643, ¶ 10.

{¶ 14} They argue that the amended order remains constitutionally

defective. According to the newspapers, the jury provision of the amended order

(the “amended jury provision”), while somewhat narrowed, still amounts to a

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“blanket restriction” on publication of jurors’ and prospective jurors’ personally

identifiable information, even when such information is disclosed in open court or

can be gleaned from the public record.2 Thus, they say, the amended jury provision

remains a prior restraint on speech that was ordered without a hearing or factual

findings based on sufficient evidence in the record. As to the amended order’s

witness provision (the “amended witness provision”), the newspapers argue that it

still fails to comply with Sup.R. 12(B)(2), in that it purports to “prohibit[] the media

from being present during a hearing on a witness’[s] objection to media coverage,”

thereby preventing the media from asserting their rights.3 Moreover, the

newspapers construe the amended witness provision as preventing them from

recording the defendants even when they are not actually testifying on the basis that

they might testify—a restriction the newspapers contend is impermissible.

II. ANALYSIS

{¶ 15} Under S.Ct.Prac.R. 12.04(C), we must determine whether to

“dismiss the case; issue an alternative or a peremptory writ . . .; or deny the request

for the writ.” Dismissal is required if it appears beyond doubt, after construing all

material facts in the complaint in the newspapers’ favor, that they are not entitled

to the requested relief. State ex rel. Morenz v. Kerr, 2004-Ohio-6208, ¶ 13. If,

however, it appears that the claims may have merit, an alternative writ should be

2. The newspapers do not argue that they are entitled to receive any specific information regarding

jurors or that personally identifying information about jurors or prospective jurors must be disclosed

by the court. And, indeed, we have recognized that certain personal information regarding

prospective jurors is properly withheld. See State ex rel. Beacon Journal Publishing Co. v. Bond,

2002-Ohio-7117, ¶ 25 (prospective juror’s “Social Security number, telephone number, and driver’s

license number . . . should be redacted from [juror] questionnaires prior to disclosure” because “such

information does nothing to further the objectives underlying the presumption of openness”). Nor

do the newspapers suggest that the court would be prohibited from conducting an in camera review

of, for example, a juror’s or prospective juror’s objection to answering a particular question in open

court. See id. at ¶ 23 (discussing conduct of in camera hearings when voir dire touches on a

prospective juror’s particularly personal or sensitive information).

3. The newspapers do not contend that they must be permitted to record a hearing that is properly

conducted in camera or otherwise closed or partially closed to the public.

6

January Term, 2026

granted. Id. Finally, if the facts are uncontroverted and it appears beyond doubt

that the newspapers are entitled to the requested relief, a peremptory writ should

issue. Id.

{¶ 16} To be entitled to a writ of prohibition, the newspapers must establish

that (1) Judge Baker Ross has exercised, or is about to exercise, judicial power,

(2) the exercise of that power is unauthorized by law, and (3) the newspapers lack

an adequate remedy in the ordinary course of the law. State ex rel. Ames v. Ondrey,

2023-Ohio-4188, ¶ 6.

A. The Action Is Not Moot

{¶ 17} Judge Baker Ross primarily argues that the newspapers’ prohibition

claim has been rendered moot by her issuance of the amended order, which she

argues “supersedes the complained-of provisions” and therefore “eliminates the

live controversy.”4

{¶ 18} In general, a case becomes moot when the issues presented are no

longer live or the parties lack a legally cognizable interest in the outcome. State ex

rel. Ames v. Summit Cty. Court of Common Pleas, 2020-Ohio-354, ¶ 8. Put another

way, if “an event occurs without the fault of either party, which renders it

impossible for the court to grant any relief,” the court will decline to decide the case

in an “exercise[ of] judicial restraint.” See Tschantz, 57 Ohio St.3d at 133; see also

Maurent v. Spatny, 2025-Ohio-5002, ¶ 9, quoting Travis v. Pub. Util. Comm., 123

Ohio St. 355, 359 (1931) (“We have long understood that the [Ohio Constitution’s]

grant of judicial power requires that we decide only ‘actual controversies where the

judgment can be carried into effect . . . .’”).

4. Although a court generally may not rely on material outside the complaint when considering a

motion to dismiss under Civ.R. 12(B)(6), see State ex rel. West v. McDonnell, 2014-Ohio-1562,

¶ 14, “[a]n event that causes a case to become moot may be proved by extrinsic evidence outside

the record,” State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis,

2002-Ohio-7041, ¶ 8. Thus, the court may properly consider the amended order attached to Judge

Baker Ross’s motion to dismiss in determining whether this case is moot. See State ex rel. Ames v.

Summit Cty. Court of Common Pleas, 2020-Ohio-354, ¶ 6 (citing cases).

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{¶ 19} The newspapers argue that the case is not moot, because the issues

raised are “capable of repetition, yet evading review.” State ex rel. Calvary v.

Upper Arlington, 2000-Ohio-142, ¶ 9. “This exception applies only in exceptional

circumstances in which the following two factors are both present: (1) the

challenged action is too short in its duration to be fully litigated before its cessation

or expiration, and (2) there is a reasonable expectation that the same complaining

party will be subject to the same action again.” Id., citing Spencer v. Kemna, 523

U.S. 1, 17 (1998).

{¶ 20} As we have explained, “Courtroom closure cases often evade

review, since a closure order usually expires before an appellate court can consider

it.” State ex rel. Beacon Journal Publishing Co. v. Donaldson, 63 Ohio St.3d 173,

175 (1992). In Donaldson, we held that a challenge to a trial court’s order closing

voir dire to the public was not moot even though (1) the trial had ended and the

closure order had therefore terminated and (2) the trial court had subsequently

adopted a new local rule that required the court to undertake additional procedures

before issuing a closure order. Id. at 174-175. We concluded that neither the end

of the underlying trial—and, by extension, cessation of the order—nor the adoption

of the local rule made the issues raised incapable of repetition. Id. at 175-176.

{¶ 21} Likewise, in Geer, we rejected the respondent-judge’s argument that

the relator-newspaper’s claim for a writ of prohibition challenging a restriction on

photographing a juvenile witness’s face was moot because the hearing to which it

was directed had ended. 2007-Ohio-4643 at ¶ 9. We noted that “[l]ike more typical

orders,” the order barring photography “was too brief in its duration to be fully

litigated before the plea hearing concluded.” Id. at ¶ 11. Moreover, we found a

“reasonable expectation” that the relator would be subjected to “comparable orders

in the future” because the respondent had stated his “continued belief that . . . ‘his

order was specifically authorized.’” Id. at ¶ 12, quoting the respondent’s brief.

8

January Term, 2026

{¶ 22} As in those cases, both “capable of repetition, yet evading review”

factors are present here. First, the original order was in effect for too short a time

to be fully litigated; indeed, Judge Baker Ross superseded the order with the

amended order only four days after issuing the original order. And as explained

further below, the amended order fails to cure all the issues raised by the

newspapers in their amended complaint. Thus, newspapers have a “reasonable

expectation” that they will be subjected to “comparable orders in the future,” see

Geer at ¶ 12; rather, it appears by all accounts that the newspapers are currently

subject to a comparable order. Finally, as the newspapers point out, if Judge Baker

Ross’s issuance of the amended order is held to moot their amended complaint,

then nothing prevents her reissuing the order, thereby frustrating the newspapers’

attempts to vindicate their constitutional rights. The “exceptional circumstances”

of this case thus qualify as capable of repetition, yet evading review. See Calvary,

2000-Ohio-142, at ¶ 9.

{¶ 23} The authorities that Judge Baker Ross cites in favor of mootness are

distinguishable. M.R. v. Niesen, 2022-Ohio-1130, for example, concerned a

challenge to a temporary restraining order that the appellants contended was a prior

restraint on speech. Id. at ¶ 6. This court dismissed the appeal as moot because not

only had the restraining order expired, but it also plainly could not be extended

under Civ.R. 65(A). Id. at ¶ 9. Further, the object of the temporary restraining

order was to prevent dissemination of one party’s identifying information because

he sought to proceed anonymously. Id. at ¶ 3-4. But in a separate proceeding, this

court had already determined that that party was required to proceed under his

proper name. Id. at ¶ 12. Thus, there was “no real possibility” that a similar

controversy regarding dissemination of his identifying information would reoccur.

Id.

{¶ 24} State ex rel. Hardesty v. Williamson, 9 Ohio St.3d 174 (1984), does

not support Judge Baker Ross’s position, either. There, the Wood County juvenile

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court transferred a child-custody matter—to which the relator was a party—to the

Wood County Domestic Relations Court. Id. at 175. The relator sought a writ of

prohibition from the Wood County Court of Appeals preventing the Wood County

Domestic Relations Court from taking any action in the child-custody matter,

contending that the matter could have been heard only by the Franklin County

Domestic Relations Court, where relator had previously obtained a divorce decree.

Id. Around the same time, the relator also filed a direct appeal with the Wood

County Court of Appeals, making the same argument. Id. The court of appeals

agreed with relator and remanded the matter to the Wood County Juvenile Court

for further proceedings. Id. at 175-176. Because, by virtue of the court of appeals’

judgment, the Wood County Domestic Relations Court could no longer exercise

jurisdiction over the case—i.e., the object of the writ was already accomplished—

this court affirmed denial of the writ on mootness grounds. See id. at 176.

{¶ 25} In both M.R. and Hardesty, circumstances above and beyond the

mere termination of the challenged order rendered the issues unlikely to recur.

Moreover, in those cases, the respondent-judge was not responsible for the

termination of the challenged order. This case is different. Judge Baker Ross

herself caused the termination of the original order, and nothing prevents her from

issuing or enforcing subsequent comparable orders. To the contrary, she has

already issued a comparable order in the form of the amended order, and the

likelihood that she will enforce that order is reasonably high, given that the trial

appears to still be in its early stages. We therefore reject Judge Baker Ross’s

mootness argument and proceed to the merits of the newspapers’ challenge.

B. Unauthorized by Law5

1. The amended jury provision

{¶ 26} The amended jury provision reads:

5. For purposes of determining whether a peremptory writ is warranted, this opinion analyzes the

relevant provisions of the amended order, rather than of the original order. The fact that the amended

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January Term, 2026

Based upon the findings of facts contained herein and in

addition to the prohibitions on photographing or recording jurors

including alternates, the media is prohibited from publishing or

otherwise distributing or making available personally identifiable

information (PII) defined herein of any juror or prospective juror,

until such time as said jurors have been fully excused from service

in this case. This is necessary to preserve the jury system and assure

individual jurors that they and their families will not be harassed or

jeopardized during the proceedings. . . .

This prohibition does not prohibit members of the media

from publishing the number of males or females, or other

demographic data, which will not personally identify a particular

juror or prospective juror.

{¶ 27} Elsewhere, the amended order defines “PII” to include “full name,

nickname, or partial name, home address, phone number, email, social media

handles, date of birth, employer, . . , images or video showing juror’s face, license

plate, or any combination of descriptors likely to identify a specific juror.”

{¶ 28} The newspapers assert that the amended jury provision does not pass

constitutional muster for two reasons: first, because it is a prior restraint on speech

that was issued without a hearing or evidentiary support, and second, because it

order is currently operative is not disputed by the parties. See Morenz, 2004-Ohio-6208, at ¶ 13

(peremptory writ of prohibition will issue “if the pertinent facts are uncontroverted and it appears

beyond doubt that [relator] is entitled to the requested writ[]”), citing State ex rel. Highlander v.

Rudduck, 2004-Ohio-4952, ¶ 8. Moreover, analysis of the amended order preserves judicial

resources and limits our decision to the issues in which the parties retain a cognizable legal interest.

See Ames, 2020-Ohio-354, at ¶ 8.

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purports to prevent the newspapers from publishing PII even if that information is

obtained “from the public record or . . . outside the courtroom.” We agree.

{¶ 29} A judicial order that forbids publication before that publication takes

place constitutes a prior restraint on speech. State ex rel. Toledo Blade Co. v. Henry

Cty. Court of Common Pleas, 2010-Ohio-1533, ¶ 20. Prior restraints have been

described as “the most serious and the least tolerable infringement on First

Amendment rights.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976). As

such, prior restraints face a “heavy presumption against their constitutional

validity,” even if they are not unconstitutional per se, because they facially offend

the fundamental rights of freedom of speech and freedom of the press enshrined in

the First Amendment to the United States Constitution and in Article I, Section 11

of the Ohio Constitution. Henry Cty. at ¶ 21. In the context of court proceedings,

a prior restraint further implicates the right of access to court proceedings embodied

in the Ohio Constitution’s open-courts provision, Ohio Const., art. I, § 16. Henry

Cty. at ¶ 22. That provision, even apart from the others, provides a presumption of

public access to court proceedings. See State ex rel. Cincinnati Enquirer v. Bloom,

2024-Ohio-5029, ¶ 37. In short, it is well established that “‘the public has the right

to be informed as to what occurs in its courts,’” and “‘reporters of all media . . . are

plainly free to report whatever occurs in open court.’” (Ellipsis added in Kainrad.)

State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St.2d 349, 353

(1976), quoting Estes v. Texas, 381 U.S. 532, 541–542 (1965).

{¶ 30} In a criminal proceeding, however, these important speech, press,

and access rights can sometimes conflict with other fundamental guarantees.

Perhaps most notably, the Sixth Amendment to the United States Constitution and

Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant’s right

to a fair trial and an impartial jury. See Henry Cty. at ¶ 23, 41, citing State ex rel.

Vindicator Printing Co. v. Watkins, 66 Ohio St.3d 129, 138 (1993); Kainrad at 351;

Ohio Const, art. I, § 10 (“In any trial, in any court, the party accused shall be

12

January Term, 2026

allowed . . . to have . . . a speedy public trial by an impartial jury . . . .”). “Pervasive,

unfair, and prejudicial media coverage of a criminal trial can sometimes deprive a

criminal defendant of this constitutional right.” Henry Cty. at ¶ 23, citing Sheppard

v. Maxwell, 384 U.S. 333, 363 (1966). Although even “pervasive, adverse publicity

does not inevitably lead to an unfair trial,” a trial judge must, if necessary, take

measures to mitigate the possibility. Nebraska Press at 555-556.

{¶ 31} In considering measures that effectively balance these important

constitutional rights in a particular case, a prior restraint cannot be the first resort.

See Kainrad at 352; see also Nebraska Press at 561 (explaining that neither the

First nor the Sixth Amendment to the United States Constitution is afforded

categorical precedence over the other). Rather, before issuing an “order not to

publish,” the court must observe both substantive and procedural safeguards.

Kainrad at 352. Substantively, the circumstances warranting a prior restraint must

be “imperative” and it must “appear[] clearly in the record” both that the

“defendant’s right to a fair trial will be jeopardized” and that “there is no other

recourse within the power of the court to protect that right or minimize the danger

to it.” Id. And, procedurally, “it is obligatory upon the court to hold a hearing and

make a finding that all other measures within the power of the court to [ensure] a

fair trial have been found unavailing and deficient.” Id. Such findings “must be

supported by evidence, not speculation.” State ex rel. Chillicothe Gazette, Inc. v.

Ross Cty. Common Pleas Court, 2 Ohio St.3d 24, 25 (1982).

{¶ 32} These requirements apply even when the speech sought to be

restrained relates to jurors’ or prospective jurors’ personal information. See id.;

compare State ex rel. Beacon Journal Publishing Co. v. Bond, 2002-Ohio-7117,

paragraph two of the syllabus (“The First Amendment qualified right of access

extends to juror names, addresses, and questionnaires, thereby creating a

presumption of openness . . . .”). In Ross Cty., the relator-newspaper filed a

complaint in prohibition in the court of appeals, challenging a trial-court order that

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prevented relator from publishing “‘the names [sic] or the address of any

prospective panelist or juror’” to the extent such information was learned in the

courtroom. (Emphasis deleted; bracketed text in original.) Id. at 24, quoting the

order. The court of appeals granted an alternative, and later a permanent, writ. Id.

On appeal to this court, we affirmed on the grounds that the trial court had not held

a hearing, had not adequately considered alternative measures, and had not

supported its order with evidence. Id. at 25. We emphasized, “‘[T]here is no reason

for a trial court to [conclude] . . . that there will be prejudicial publicity . . . and to

presume that such publicity will create a . . . threat to the administration of justice.

. . .’” (Ellipses added in Ross Cty.) Id., quoting State ex rel. Dayton Newspapers,

Inc. v. Phillips, 46 Ohio St.2d 457, 468-469 (1976).

{¶ 33} Here, the amended jury provision constitutes a prior restraint in that

it temporarily restricts the media from “publishing,” “distributing,” or “making

available” jurors’ or prospective jurors’ “personally identifiable information,”

apparently regardless of how that information was obtained. See Henry Cty, 2010-

Ohio-1533, at ¶ 20. Moreover, its issuance does not appear to comply with the

procedural safeguards demanded by Kainrad. To be sure, the amended order

includes certain “Findings of Fact” and “Conclusions of Law,” including that

(1) the circumstances of the case created “an imminent risk of mistrial, thereby

threatening the fair-trial rights of all parties and the integrity of [the] proceedings”

and (2) alternative safeguards, such as robust admonitions, instructions, and

sequestration were “insufficient to mitigate the imminent risk of harassment and

outside influence.” But there is no indication that the court held a hearing, received

evidence, or permitted those affected to be heard before determining that these

circumstances required an order amounting to prior restraint. For that reason, the

order’s imposition of prior restraint is impermissible. Ross Cty., 2 Ohio St.3d at

25. This is so even if some of the factual findings contained in the amended order

are properly predicated on judicially noticeable facts.

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January Term, 2026

{¶ 34} Even if it did comply with the hearing requirement of Kainrad, the

amended jury provision would still be unenforceable to the extent it prohibits

publication of information that is revealed in open court or from publicly available

court records. State ex rel. Natl. Broadcasting Co. v. Lake Cty. Common Pleas

Court, 52 Ohio St.3d 104, 113 (1990), overruled on other grounds by State v.

Schlee, 2008-Ohio-545, ¶ 10, quoting Craig v. Harney, 331 U.S. 367, 374 (1947)

(“It is well-settled, despite implications to the contrary in both Kainrad and

Kaufman, that ‘[t]hose who see and hear what transpired [in the courtroom] can

report it with impunity.’” [Bracketed material added in Natl. Broadcasting.]).

2. The amended witness provision

{¶ 35} The amended witness provision reads:

Each witness has the right to object to “media coverage” in

any form including but not limited to photographs, audio recording,

video recording, and any form of transmission including live

streaming. . . .

Pursuant to Sup.R. 12(B)(2), any witness who objects to

media coverage shall be afforded an opportunity to be heard by the

Court outside the presence of media representatives and without

media coverage. Media coverage of any objecting witness is

prohibited, in and out of the Courtroom, prior to and during the

objection hearing. If the objection hearing occurs in open court, any

and all forms of media coverage—including audio recording, video

recording, transmission, live streaming, and photography—shall be

suspended during the hearing until the Court rules on the objection.

The Court shall rule on the objection and, if granted, the

Court shall make a finding on the record with sufficient specificity

to support the restriction. The finding shall provide the reason(s) for

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granting the objection, which may include, but are not limited to,

protection of the witness’s safety, privacy, or emotional well-being,

or the need to ensure the integrity of the proceedings. Any witness

whose objection to media coverage has been granted shall not be

recorded, televised, or photographed, live streamed or transmitted in

any form inside and outside of the Courtroom.

{¶ 36} In their amended complaint, the newspapers assert that the jury

provision of the original order was impermissible under Sup.R. 12(B)(2) because it

treated a witness’s objection to being recorded as automatically prohibiting

recording the objecting witness. The amended complaint does not explicitly invoke

the Ohio Constitution as a basis of this claim. In their memorandum in opposition

to Judge Baker Ross’s motion to dismiss, the newspapers argue that the amended

witness provision should still fail for three reasons. First, they argue that the

amended witness provision fails to comply with Sup.R. 12(B)(2) because it does

not “provide sufficient opportunity for all affected parties to be heard.” Second,

the newspapers say it violates the open-courts provision, Article I, Section 16, of

the Ohio Constitution, because it excludes media from the hearing on a witness’s

objection when it occurs in open court. Finally, they argue that it impermissibly

prevents them from recording the defendants—if they were to testify—even when

they are not actually testifying.

{¶ 37} As explained above, both the Ohio Constitution and the United

States Constitution independently protect the public’s right to access court

proceedings and to speak freely. See Henry Cty., 2010-Ohio-1533, at ¶ 22; Bloom,

2024-Ohio-5029, at ¶ 48 (“our Constitution protects public access to court

proceedings that extends further than the United States Supreme Court’s

interpretation of the free-speech and -press guarantees of the federal

Constitution.”).

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{¶ 38} The newspapers’ amended complaint does not specifically invoke

the Ohio Constitution. Rather, their challenge to the witness provision was

predicated on Sup.R. 12(B)(2). Sup.R. 12(A) provides that upon written request,

and “[u]nless otherwise provided by law or local rule, the judge assigned to the

proceeding shall permit audio, audio-video recording, broadcasting by electronic

means, and taking photographs in court proceedings that are open to the public.”6

(Emphasis added.) Sup.R. 12(B) provides certain limitations on this permission.

As relevant here, Sup.R. 12(B)(2) provides that “any victim or witness who objects

to being recorded” must be permitted “the opportunity to be heard in advance of

testifying.”

{¶ 39} But as this court has explained, it is not only the objecting witness

who must be given an opportunity to be heard. Rather, when faced with a witness’s

objection, the trial court must give the persons affected (e.g., print or broadcast

media covering the proceedings) the opportunity to respond to the possibility of

any restriction. Geer, 2007-Ohio-4643, at ¶ 19. Similar to the procedure applicable

to prior restraints, discussed above, the court must consider the reasons given for

the objection, weigh the asserted harm against the benefits of public access, and

make findings “based upon evidence in the record.” Id. at ¶ 18-20. A recording

restriction based on a witness’s objection without notice and an opportunity for all

those affected—including the media—to be heard is grounds for issuance of a writ

of prohibition. Id. at ¶ 20.

{¶ 40} The amended witness provision runs afoul of Sup.R. 12 for at least

two reasons. First, the provision provides that an objecting witness will be heard

6. The local rules of the Summit County Court of Common Pleas do not provide otherwise. See

Summit C.P., Gen.Div., Loc.R. 14.01, available at https://www.akronlegalnews.com

/rules_of_court/common_pleas/general_division_14 (accessed Feb. 12, 2026)

[https://perma.cc/WF95-93SU] (“[T]he Court shall permit the broadcasting, recording and taking of

photographs in Court proceedings. Requests for permission to use such electronic recording or

photographic equipment shall be in writing.”).

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“outside the presence of media representatives and without media coverage.” Even

if unintentionally, this language appears to prevent “media representatives” from

being heard on the propriety of the recording restriction being considered. This is

impermissible, because, as representatives of the public, the media have a right to

be heard. See Geer at ¶ 20.

{¶ 41} Second, the amended witness provision provides that “any and all

forms of media coverage” are “suspended” during an objection hearing, even “[i]f

the objection hearing occurs in open court.” But unless Judge Baker Ross properly

closes the objection hearing—which would require its own procedural

prerequisites—proper requests to record open proceedings must be granted, Sup.R.

12(A), subject to certain restrictions contemplated by the remainder of Sup.R. 12;

for example, those contained in Sup.R. 12(A) (judge may specify placement of

recording equipment and operators), Sup.R. 12(B)(1) (prohibiting recording of

conferences among counsel and their clients or at the bench), Sup.R. 12(D)

(limiting the number of operators and recording systems and providing for pool

representation). See Geer at ¶ 16 (“If . . . the request [to record] is granted, the

media rightfully expect that there will be no restrictions other than those stated by

[Sup.R. 12].”); State v. Sowell, 2016-Ohio-8025, ¶ 51, quoting Sup.R. 12(A) (“[A]

trial court may not exclude cameras from ‘court proceedings that are open to the

public.’”).

{¶ 42} The newspapers further argue that the amended witness provision is

overbroad because it prohibits recording of defendants—assuming they object to

being recorded—even when they are not actively testifying. We agree.

{¶ 43} The amended witness provision provides that a “witness” whose

objection has been granted “shall not be recorded . . . inside and outside of the

Courtroom.” As the newspapers point out, however, we have construed the word

“witness” in these circumstances to exclude “a defendant who intends to testify but

is not actually testifying.” Lake Cty., 52 Ohio St.3d at 114. In that case, we

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January Term, 2026

explained that the “rule against photographing witnesses who object serves the

purpose of avoiding distractions that might interfere with the witness’[s] ability to

testify.” Id. Because that purpose would not be served by a ban on photographing

a defendant while he or she is off the stand, “[a] defendant’s intention to testify is

not a sufficient basis for the court to completely forbid relators to take pictures of

him in the courtroom.” Id.

C. Existence of Alternative, Adequate Remedies

{¶ 44} Finally, Judge Baker Ross argues that a writ of prohibition cannot

issue because the newspapers possess adequate remedies in the ordinary course of

the law. She says that the newspapers could, for example, institute a mandamus

action to compel access to records or appeal from any contempt or sanction order

imposed for violating the order.

{¶ 45} However, it has long been settled that a writ of prohibition is the

proper remedy to address courtroom restrictions that are alleged to violate the

freedom of the press. See, e.g., Phillips, 46 Ohio St.2d 457, paragraph one of the

syllabus; Kainrad, 46 Ohio St.2d at 355; In re T.R., 52 Ohio St.3d 6 (1990),

paragraph one of the syllabus, overruled on other grounds by Bloom, 2024-Ohio-

5029. Indeed, we have stated that prohibition may be “the only remedy available

to nonparties who wish to challenge an order which restricts the rights of free

speech and press.” (Emphasis in original.) State ex rel. News Herald v. Ottawa

Cty. Common Pleas Court., Juv. Div., 77 Ohio St.3d 40, 43 (1996). Nonparties to

the court proceedings, like the media, are often without adequate remedies in the

ordinary course of the law because “closure and gag orders,” like the amended order

at issue here, are interlocutory in nature. T.R at 10. Further, in Ottawa Cty., we

granted a writ of prohibition preventing enforcement of a “prior restraint . . . order

[that] prohibited publication of information legally obtained” when the relators

were threatened with criminal contempt if they violated the order. Ottawa Cty. at

45.

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{¶ 46} In light of these authorities, prohibition is the proper vehicle for the

newspapers’ claims, and the potential that the newspapers might later successfully

appeal an order punishing them for violating the amended order is not an adequate

remedy precluding issuance of the writ. Moreover, even if mandamus were an

appropriate vehicle for the newspapers’ claims, that remedy is not available in the

ordinary course of law, because mandamus, like prohibition, is an extraordinary

remedy. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 166 (1977)

(“Mandamus and prohibition are extraordinary remedies, to be issued with great

caution and discretion and only when the way is clear.”).

D. Motion for Leave to File Revised Opposition to Motion to Dismiss

{¶ 47} On February 11, the newspapers filed a motion for leave to file a

revised memorandum in opposition to Judge Baker Ross’s motion to dismiss.

According to the newspapers, the only difference between their revised

memorandum in opposition and their original memorandum is the inclusion of an

affidavit by an Akron Beacon Journal Reporter covering the trial, which the

newspapers say is additional support for their position that the amended order does

not provide them an opportunity to be heard on a witness’s objection.

{¶ 48} For the reasons set forth above, we find it unnecessary to consider

the new material included within the newspapers’ proposed revised memorandum

in opposition. We therefore deny as moot the newspapers’ motion for leave to file

a revised memorandum in opposition to the motion to dismiss.

III. CONCLUSION

{¶ 49} For these reasons, we grant a peremptory writ of prohibition

preventing Judge Baker Ross from enforcing (1) the amended jury provision’s

prohibition on publication of jurors’ or prospective jurors’ personal information

(a) until she holds a hearing and makes the necessary findings from evidence in the

record and (b) to the extent that the amended provision prohibits dissemination of

information revealed in open court or from publicly available court records, and

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January Term, 2026

(2) the amended witness provision pertaining to the recording of objecting

witnesses, to the extent that it (a) prohibits representatives of the media from

attending and being heard at a witness’s objection hearing, (b) prohibits recording

of objection hearings that occur in open court, and (c) prohibits recording of

defendants when they are not testifying. We deny as moot the newspapers’ motion

for leave to file a revised memorandum in opposition to the motion to dismiss.

Writ granted.

__________________

Faruki P.L.L., John C. Greiner, Melissa L. Watt, and Griffin R. Reyelts, for

relators.

Elliot Kolkovich, Summit County Prosecuting Attorney, and Jennifer M.

Piatt, Assistant Prosecuting Attorney, for respondent.

__________________

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