The Volokh Conspiracy
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As many readers of this blog know, I've long been interested in how criminal harassment laws and restraining order laws have been morphing from restricting unwanted speech to people into restricting speech about people.
Such laws have traditionally covered unwanted phone calls, unwanted letters, unwanted attempts at face-to-face conversation and the like: again, speech to a particular person. Courts have generally upheld such restrictions on speech, and in many instances, plausibly so. As the Supreme Court held in 1970 in upholding a statute that let people block continued unwanted mailings into their homes, "no one has a right to press even 'good' ideas on an unwilling recipient."
But in recent years, courts and prosecutors have increasingly used these laws to cover statements said to the public at large about particular people. Speakers have been prosecuted for posting repeated offensive messages or distributing offensive flyers about people (including about political and religious figures). Courts have issued orders barring speakers from saying anything about a person and ordering speakers to take down existing posts about that person. I wrote a law journal article about this two years ago, "One-To-One Speech vs. One-To-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731 (2013); I've also filed friend-of-the-court briefs on the subject in six different cases (in Georgia, Massachusetts, New Jersey, New York, Washington, and Wisconsin) and last year had the pleasure of arguing on behalf of amici in one such case, Chan v. Ellis—this March, the Georgia Supreme Court reversed the speech-restrictive order in that case.
Friday, I filed a friend-of-the-court brief in another such case, Van Valkerburg v. Gjoni, now pending in Massachusetts appellate court. The brief is on behalf of Prof. Aaron Caplan (author of "Free Speech and Civil Harassment Orders," 64 Hastings L.J. 781 (2013), and one of the amici in Chan v. Ellis) and me; Daniel Lyne and Ted Folkman of Murphy & King (and, in Ted's case, of Letters Blogatory: The Blog of International Judicial Assistance) were kind enough to agree to be our pro bono counsel, for which I'm very grateful. (For our nonlawyer readers, a "friend-of-the-court brief" simply means a brief by people or entities that aren't the plaintiff or the defendant or some other party to the litigation, and who thus have no direct stake in the case but just want to argue in favor of what they think is the correct result. It doesn't mean that the brief was invited by the court, though occasionally courts do indeed expressly invite the filing of such briefs.)
In Van Valkerburg, a Massachusetts trial court issued an order providing that Gjoni is
Ordered not to post any further information about the [plaintiff] or her personal life on line or to encourage "hate mobs"
That order, we argue, is a clear violation of the First Amendment, for reasons we explain in the brief, which I'm also quoting below. A court can't order someone to just stop saying anything about a person. Certain narrow categories of speech about people are constitutionally unprotected (such as true threats of violence, speech that is intended to and likely to incite people to imminent criminal conduct, and possibly certain kinds of speech that reveals highly private information). But this order goes vastly beyond any such narrow First Amendment exceptions.
Now the story behind this case is considerably higher-profile than the ones I've written about before: The post that led to the order is at the heart of the so-called "Gamergate" controversy, which some readers might be acquainted with. Eron Gjoni was briefly romantically involved with Chelsea Van Valkenburg, a computer game developer who used the pen name Zoe Quinn, and who I am told has recently changed her name legally to Zoe Quinn. (The case was entered into the court system under the name Van Valkerburg rather than Van Valkenburg or Quinn, so the briefs use Van Valkerburg.) After they broke up, Gjoni wrote a series of blog posts about Van Valkenburg, in which he accused her—whether or not accurately—of mistreating him in various ways during his relationship. This post in turn led to various accusations about supposed misdeeds in the video gaming industry, and various threats of violence against Van Valkenburg by people who have apparently taken Gjoni's side.
Naturally, there are many possible legal actions that might be contemplated here. If Gjoni made false factual assertions about Van Valkenburg, she could sue him for libel or under the "false light" tort. If he said things about her that were highly personal and not viewed by courts as of legitimate public concern, she could sue him under the "disclosure of private facts" tort, though that doctrine is quite narrow and complex (for many reasons, including some you can see from Part II of the brief).
Certainly, people who send death threats could be prosecuted for that, though of course it's often hard to track them down, or even to get the police and prosecutors interested in the matter. In principle, if it can be shown that some statement was intended to and likely to incite people to imminent criminal conduct—i.e., conduct within the next few hours or maybe days, rather than at some unspecified time in the future—that could be punished as well, though that's an extremely narrow First Amendment exception. (The Supreme Court has struggled since the 1910s with the question of when speech can be restricted because it may lead some of its readers to commit crimes; this ultimately led to the development of the incitement exception, which I just paraphrased, and which the Court set forth and elaborated in Brandenburg v. Ohio (1969), Hess v. Indiana (1973), and NAACP v. Claiborne Hardware Co. (1982).) Such criminal and civil liability might be constitutional, under the right circumstances, since there are indeed some narrow exceptions to First Amendment protection into which this liability could fit.
But, as the brief below argues, the court's particular order is certainly not constitutional. You can read the full brief here, but I include all the meat, minus some footnotes with citations, below.
Note that two weeks ago Van Valkenburg filed a document stating that she is asking the trial court that issued the restraining order to vacate it, because she believes the order has become counterproductive. But right now the order remains in place, and the appeal remains in progress. And it's possible that a withdrawal of the order won't stop the appeal in any event, since even the scheduled expiration of such orders doesn't necessarily moot appeals, if the person who had been the target of the order wants to continue the appeal.
Note also that Prof. Caplan and I filed an amicus letter a few weeks ago supporting Gjoni's request to have the Massachusetts Supreme Judicial Court directly review the case, rather than having the case go through the Massachusetts Appellate Court first. But that procedural matter struck me as a bit too inside-baseball to blog about, especially since I knew that this brief was forthcoming.
* * *
Broad injunctions, such as the one in this case, violate the First Amendment
The injunction in this case, barring the posting of all "information" about Ms. Van Valkerburg, is an unconstitutional prior restraint. "An injunction that forbids speech activities is a classic example of a prior restraint." Care & Protection of Edith, 421 Mass. 703, 705 (1996); see also Organization for Better Austin v. Keefe, 402 U.S. 415 (1971) (striking down an injunction barring leafletting critical of a real estate agent); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 893, 924 n.67 (1982) (striking down an injunction barring "demeaning and obscene" speech about people who refused to participate in a boycott); Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. 781, 817-26 (2013).
Indeed, even criminal punishment of supposedly "harass[ing]" speech about a person is permissible only if the speech fits within a First Amendment exception. Commonwealth v. Johnson, 470 Mass. 300, 310, 311 n.12 (2014); O'Brien v. Borowski, 461 Mass. 415, 422-23 (2012); Eugene Volokh, One-To-One Speech vs. One-To-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw. U. L. Rev. 731, 751-62, 773-93 (2013); People v. Bethea, 1 Misc. 3d 909(A), 2004 WL 190054, *1-*2 (N.Y. Crim. Ct. 2004) (rejecting criminal harassment prosecution of woman who had posted leaflets sharply criticizing the allegedly deadbeat father of her child, and relying on the principle that "Americans are, after all, free to criticize one another"). It follows that a prior restraint of speech—"the most serious and the least tolerable infringement on First Amendment rights," Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976)—would be unconstitutional, too, at least if (as here) it is not limited to speech that fits within an exception.
Even the narrower restriction on speech that "encourage[s] 'hate mobs,'" if severed from the rest of the injunction, would be unconstitutional. That restriction is not limited to speech that fits within a First Amendment exception, here speech that is intended to and likely to promote imminent lawless conduct, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); Hess v. Indiana, 414 U.S. 105, 108-09 (1973). Indeed, the injunction in Claiborne Hardware involved speech that, according to the plaintiffs in that case, had the potential to lead others to retaliate against the target of the speech, 458 U.S. at 904-05; yet the Court nonetheless overturned the injunction.
Likewise, even an injunction banning only communication of information about Van Valkerburg's "personal life" would likely be unconstitutional. Speech restrictions aimed at protecting privacy, like other restrictions, must comply with the First Amendment. See, e.g., Care & Protection of Edith, 421 Mass. at 705-06.
"Mere intrusion on a person's alleged privacy interest is not by itself an adequate base on which to predicate a broad prior restraint on another's free speech." Nyer v. Munoz-Mendoza, 385 Mass. 184, 189 (1982). "Designating . . . conduct as an invasion of privacy . . . is not sufficient to support an injunction" against speech, at least when a plaintiff "is not attempting to stop the flow of information into his own household, but to the public." Keefe, 402 U.S. at 419-20.
Indeed, a Georgia appellate case held that, for First Amendment reasons, stalking statutes would not authorize an injunction even against "extremely insensitive" speech "publishing or discussing [an ex-girlfriend's] private medical condition," Collins v. Bazan, 568 S.E. 2d 72, 73-74 (Ga. Ct. App. 2002). It would follow that a broad ban on speech discussing a person's "personal life" would be unconstitutional, too. Even if some very narrow injunctions against speech may sometimes be justified on privacy grounds, a ban on all speech about a person's "personal life" cannot be.
This case is not about whether Mr. Gjoni could be held liable for disclosure of private facts as to some of his statements. It is not about whether some of Mr. Gjoni's readers could be criminally punished, or held civilly liable, for any threats they made against Ms. Van Valkerburg. It is about whether an American court can issue a prior restraint against a person's conveying any "information" about another person. And that is the remedy that the First Amendment most clearly forbids.
Restricting speech about an ex-lover's life unconstitutionally restricts people's ability to speak about their own lives
Restricting Gjoni's speech about Van Valkerburg also unconstitutionally restricts Gjoni's speech about himself and his own life. The injunction, for instance, limits Gjoni's ability to publicly discuss this litigation or the injunction itself. Gjoni cannot discuss his case without including some "information about" Van Valkerburg, including about her "personal life"—such as her name, their past romantic relationship, and the fact that she sought an injunction against him.
Likewise, when people condemn Gjoni online for allegedly acting badly by writing about Van Valkerburg, the injunction limits Gjoni from explaining why he thought his statements were fair and justified. And if Gjoni wants to tell his friends and acquaintances, in an online journal or on his Facebook page, how he feels about romantic relationships or why he is cautious about a new relationship, he cannot do so if the explanation would mention Van Valkerburg.
Courts have recognized that even imposing tort liability for speech about the speaker's relationship with someone else would improperly restrict the speaker's ability to describe his or her own life. For instance, in Bonome v. Kaysen, 17 Mass. L. Rptr. 695, 2004 WL 1194731 (Mass. Super. Ct. 2004), author Susana Kaysen wrote a book about her own life, including her relationship with Joseph Bonome. The book included many details, including intimate sexual details, and though it did not mention Bonome's name, people who knew about his relationship with Kaysen recognized him.
Bonome sued for disclosure of private facts, but the court rejected that argument. The court found that even a personal life story can be seen as involving "issues of legitimate public concern," id. at *5, simply because it discusses broader matters such as relationships between the sexes. Likewise, any future posts by Mr. Gjoni that mention Ms. Van Valkerburg in the course of discussing the injunction in this case, Mr. Gjoni's thoughts about the computer gaming business, or relationships between the sexes would similarly involve issues of legitimate public concern.
And, because "it is often difficult, if not impossible, to separate one's intimate and personal experiences from the people with whom those experiences are shared," the court in Bonome held that "the First Amendment protects Kaysen's ability" to discuss her life, even though "disclosing Bonome's involvement in those experiences is a necessary incident thereto." Id. at *6. Other recent cases, such as Anonsen v. Donahue, 857 S.W.2d 700 (Tex. Ct. App. 2003), take the same view. See also Sonja R. West, The Story of Me: The Underprotection of Autobiographical Speech, 84 Wash. U. L. Rev. 905, 907-11 (2006) (explaining how autobiographical speech must often also mention others).
For the reasons mentioned in Part I, imposing a prior restraint on such speech would be improper as well. And that is especially so when the prior restraint covers not just the narrow category of speech that fits within the disclosure of private facts tort, but instead covers any "information about the [plaintiff] or her personal life."
Nor does it matter that plaintiff may not be a general-purpose public figure for libel law purposes. True statements, and expressions of opinion about people, are fully protected regardless of whether the subjects are private figures. Even in intentional infliction of emotional distress cases, the First Amendment applies to speech related to private figures as much as to speech related to public figures. See Snyder v. Phelps, 562 U.S. 443, 451, 458 (2011) (applying the reasoning of Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), which involved a public figure plaintiff, to a case where the plaintiff and the subject of the speech were both private figures).
Likewise, the losing plaintiffs in Bonome and Anonsen were private figures, too. So was the losing plaintiff in Keefe, and the subjects of the speech in Claiborne Hardware. The U.S. Supreme Court has recognized a plaintiff's private figure status as relevant in only one area: whether compensatory damages in libel cases can be based on a showing of mere negligence, rather than "actual malice." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-50 (1974). That status is not relevant to attempts to suppress nonlibelous speech about the person, including truthful statements and expressions of opinion.
III. Allowing such broad injunctions would open the door to suppressing a broad range of speech
Any order affirming the trial court decision in this case would also affect many cases beyond this one, and many cases beyond those arising from disputes among ex-lovers.
The trial court decision in this case is an instance of a broader problem. In recent years, some trial courts throughout the country—including in Massachusetts—have entered strikingly broad injunctions that bar a wide range of speech about particular people. These injunctions, like the one in this case, are not limited to unprotected speech, such as proven libel, "fighting words," threats, or speech intended to and likely to incite imminent illegal conduct. Nor are they limited to unwanted speech to a person. Rather, they restrict a wide range of speech to the public about the person.
Thus, for instance, in Chan v. Ellis, 770 S.E.2d 851 (Ga. 2015), the Georgia Supreme Court reversed an injunction that ordered a web site operator, Matthew Chan, to delete "all posts relating to [Linda] Ellis" from his web site, and likely forbade the posting of future posts as well. The Georgia Supreme Court concluded that the injunction was not authorized by Georgia law, largely because the injunction covered speech about a person and not just speech to her. The court therefore did not need to reach the serious First Amendment objections to the injunction.
Likewise, in Kleem v. Hamrick, a local gadfly and past local candidate, blogged offensive things about the sister of a town's mayor, who was also a local civic figure. An Ohio Court of Common Pleas judge responded by ordering that the blogger "is prohibited from posting any information/comments/threats/or any other data on any internet site, regarding the petitioner and any member of her immediate or extended family . . . on any site," including both her own blog and the Cleveland.com news site.
In Kimberlin v. Walker, a Maryland court similarly enjoined a blogger from blogging about a political activist who was also a convicted criminal. That order, too, was later vacated—though not for a month [and] a half, time during which the blogger's First Amendment rights were suppressed. And in Nilan v. Valenti, a Massachusetts court ordered a blogger (and former professional journalist) to remove his blog posts about a woman—as it happens, a local judge's daughter—who had been accused of criminal negligence and leaving the scene of an accident after hitting a pedestrian with her car. Again, that order was later vacated.
Trial courts in other states have likewise enjoined people from saying anything at all online about ex-lovers or ex-spouses' lawyers. Courts have enjoined people from criticizing those with whom the people have had business dealings. One court has issued a restraining order based on a defendant's repeatedly (and accurately) publicizing the fact that the plaintiff had been suspended from practicing law for defrauding a client.
Most of these cases have been trial court orders, which were either unappealed or reversed on appeal. They may have been entered without adequate First Amendment briefing—such inadequate briefing is not uncommon in state trial courts, especially in civil injunction cases, where the defendant speaker may not be represented by counsel. And many trial court judges may generally not be familiar with First Amendment doctrine, which only rarely arises in their courts. This is why it is especially important for appellate courts, such as this Court, to clearly indicate to trial courts that broad injunctions such as the one in this case violate the First Amendment.
For these reasons, amici ask the Court to hold that the restraining order violates the First Amendment.