COLUMBUS — A Pike County journalist who sued county officials after he was arrested for publishing surreptitiously recorded trial testimony has argued against granting the defendants’ request for judgment in their favor.
Among the arguments offered by attorneys for Derek J. Myers and his online news publication the Scioto Valley Guardian is the claim that publication of the testimony from a high-profile murder trial qualifies as constitutionally protected speech under the First Amendment, and therefore cannot provide probable cause for an arrest.
Myers is editor-in-chief of the Guardian, and also ran unsuccessfully in the March 19 Republican primary for Ohio’s 2nd District congressional seat. In December he, the Guardian, and its parent company, News Patrol, Inc., filed suit in U.S. District Court for the Southern District of Ohio, Eastern Division. They named as defendants Pike County Sheriff Tracy Evans and two of his officers in both their official and personal capacities, and the Pike County Commissioners.
The Guardian had published an article in October 2022, about the then-ongoing trial of George Wagner IV in Pike County Common Pleas Court. Wagner was one of four family members who were charged in connection with the 2016 execution-style killing of eight members of the Rhoden family, in a case that has received intensive media coverage around the region and state.
The judge hearing the case had ordered that witnesses could opt out of having their testimony audio or video recorded. The defendant’s brother, Edward “Jake” Wagner, asked not to be recorded, and the judge granted this request over the objections of the Guardian and other media outlets.
The Guardian, however, somehow obtained an audio recording of the testimony — Myers insists he did not make the recording himself, and was out of the country on the day Jake Wagner testified — and both published a story about it over Myers’ byline, and posted the audio online.
The sheriff’s office then got an arrest warrant for Myers on a wiretapping charge, and seized his laptop computer and cell phone. Pike County Common Pleas Court online records show the criminal case against Myers was dismissed without prejudice in August 2023.
The lawsuit alleges that the sheriff’s office acted “without probable cause, knowingly, intentionally, and purposefully, and maliciously, with a conscious disregard for Myers’s constitutional rights under the First, Fourth, and Fourteenth Amendments,” as well as the Privacy Protection Act of 1980 (PPA).
The defendants have asked for judgment in their favor, arguing among other points that Myers has not provided enough support for his claim that he was charged criminally in retaliation for his having exercised his First Amendment rights.
In a response filed Tuesday, the plaintiffs’ attorneys Marc D. Mezibov and Emmett E. Robinson offer a point-by-point rebuttal of every argument the defendants made for summary judgment.
Perhaps most notably, they address the county’s contention that Myers’ First
Amendment claims fail because the sheriff’s office had probable cause to arrest him — an argument Mezibov and Robinson describe as “fatally flawed.”
Though the defendants assert that the issuance of an arrest warrant for Myers establishes probable cause, “they are incorrect,” the attorneys say. They cite federal case law establishing that “protected speech cannot serve as the basis for probable cause,” and add, “Yet that is precisely the purported basis for the arrest warrant here.”
They go on: “The Supreme Court has squarely held that the very conduct complained of in the (criminal) complaint (against Myers) — media dissemination of newsworthy yet improperly recorded audio — is speech protected by the First Amendment.” Therefore, they conclude, publishing the testimony could not provide a legitimate basis for arresting Myers even if was obtained illegally.
Among many other arguments, the defendants also maintain that the Guardian has no standing to be a plaintiff in the lawsuit, because no harm was allegedly done to the publication, only to Myers.
Mezibov and Robinson respond that arresting Myers and seizing his electronic devices have already caused harm to the Guardian in multiple ways. “Its editor-in-chief has already been arrested, and its news-gathering and news-reporting functions have already been impaired by that arrest and by the seizure of Mr. Myers’ electronics,” they contend. And by arresting and prosecuting Myers, they add, “defendants here have implicitly accused the
Guardian of employing an untrustworthy criminal as its editor-in-chief. The impact of this accusation on a legitimate news organization is both imminent and palpable.”
Email at jphillips@logandaily.com
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