The Volokh Conspiracy
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Here's part of a Civil No Contact Order in Townsend v. Glick (Mont. Dist. Ct. filed Apr. 10, 2015):
Ron Glick shall not utilize the name Angela J. Townsend or The Forlorned in any manner except in his Federal District Court case. This prohibition shall extend but not be limited to any internet communications, postings or social media.
This isn't an injunction ordering someone to stop engaging in constitutionally unprotected speech, such as threats or libel. It isn't an injunction ordering someone to stop talking to someone who doesn't want to listen. It's an injunction (in effect until Dec. 31 of this year) to stop any speech about a person using the person's name or the name of her book, including constitutionally protected speech. (I think "utilize" here is meant in the sense of "use," not in any more specific sense of "putting to commercial use"; among other things, that helps explain the exception for use in the Federal District Court case.) I've written before about some courts' tendency to issue such injunctions, and I've been seeing many other such examples in recent months.
The order emerged from acrimony caused by Glick's and Townsend's dispute over rights in a book title (the subject of the "Federal District Court case" mentioned by the order). According to Glick v. Townsend (D. Mont. June 29, 2015),
Glick filed this action alleging that Defendants infringed on his trademark rights to the book title "The Forlorned." Glick assisted Defendant Townsend in her re-write and re-brand of a novel, including creation of the title "The Forlorned." Glick alleges that Defendants have not credited him with creation of the book title and have expanded use of the title beyond the permission Glick granted to Defendant Townsend.
The federal court held against Glick in the trademark case. But even before the ruling, Townsend sought a restraining order in state court, based on Glick's alleged "stalking" of her (defined as "purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly: (a) following the stalked person; or (b) harassing, threatening, or intimidating the stalked person, in person or by mail, electronic communication, … or any other action"). As the Montana Supreme Court noted in its decision a week ago, the trial court "found the evidence insufficient to 'rise to the level of stalking'" (emphasis added) but found "that Glick and Townsend's friendship and business relationship had 'gone seriously south' and that 'there should be no contact' between them other than to address the federal court proceedings," and thus issued the restraining order.
And unfortunately, the Montana Supreme Court went on to uphold the decision, without any real First Amendment analysis, even though the opinion noted that Glick "argues that the Order infringed upon his freedom of speech and expression by prohibiting him from using Townsend's name or trademark."
In this case, the [state trial court] properly exercised its inherent power in issuing the temporary Civil No Contact Order. Given the pending federal case and the voluminous documents filed with the court evidencing the escalating tension between the parties, the District Court's conclusion that "there should be no contact" between Glick and Townsend for a defined period of time did not exceed its authority. The court's temporary Civil No Contact Order—which allowed certain contact for purposes of litigating the pending federal case—was a suitable mode of responding to Townsend's invocation of the court's jurisdiction to address Glick's conduct towards her.
Now Glick seems to be a bad fellow: He had served five years in prison for molesting his then-girlfriend's 13-year-old daughter and is still on many years' worth of probation for that, though this restriction on its face has nothing to do with any probation conditions, and the Montana Supreme Court said nothing about the probation or Glick's past crimes. Glick might also have come across as the sort of self-represented litigant that many courts view as a pest. And he apparently failed to properly order the transcript of the trial court hearing (more on that in the Montana Supreme Court's decision), though perhaps because he couldn't afford to do so.
At the same time, I don't think this can justify upholding such a broad restriction on Glick's free speech rights, without any serious analysis of the obvious First Amendment problems that the restriction poses. It's unsurprising that in such a case the defendant wouldn't be well-represented, would make procedural errors and might be unable to afford to get a transcript prepared—while sufficiently poor defendants in criminal cases are entitled to a court-appointed lawyer (at least where jail time is potentially at stake), defendants who are facing restraining orders don't get such lawyers. Trial courts shouldn't be allowed to issue such vastly overbroad orders, and I think appellate courts have a responsibility to make that clear to trial courts.
In any event, I hope to have more this week on several other recent cases of this sort.