Court to citizen: Don't post anything online about the police officer you've been criticizing

|The Volokh Conspiracy |

Here are the facts of Neptune v. Lanoue, decided last month by the Florida Court of Appeal (emphasis added):

The Officer [Philip Lanoue] is a police officer for a city police department in Florida. Appellant [Patrick Neptune] alleges that the Officer "cut him off" in traffic, so Appellant followed the Officer into the neighborhood in which they both lived and scolded him for his driving. According to Appellant, the Officer then stopped Appellant from leaving the area and wrote him a ticket for failing to wear a seatbelt, an allegation Appellant staunchly denies. Appellant claims the Officer later informed Appellant's parents of the incident.

Appellant subsequently sent several letters to the Officer's Chief and several other public officials, complaining about his mistreatment by the Officer. Appellant sent at least three letters to the Officer's home address. Appellant also posted the Officer's picture on a "copblock" website with a complaint about the incident.

This conduct led the Officer to seek an injunction against stalking directed toward Appellant. A final injunction was issued prohibiting Appellant from coming within 500 feet of the Officer's residence, from posting anything on the Internet regarding the Officer, and from defacing or destroying the Officer's personal property.

The court upheld much of the injunction, but it did strike down the ban on "posting anything on the Internet regarding the officer," at least as applied to speech on matters of "public concern":

While personal attacks on the Officer ordinarily would not be considered to be "of public concern," Appellant's online posting was exclusively about an alleged abuse of power by the Officer acting in his official capacity as a police officer. Obviously, alleged misconduct by police officers is a matter of "general interest and of value and concern to the public." Additionally, "[e]nsuring the public's right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally."

The First Amendment protects Appellant's right to criticize public officials such as the Officer. "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." The injunction issued by the trial court is impermissibly broad and, insofar as it states "the Respondent shall not 'post' on the Internet regarding the Petitioner," in violation of Appellant's First Amendment right to free speech.

The injunction paints with unduly broad strokes on a very large canvas, and goes far beyond enjoining Appellant's cyberstalking of the Officer. [Footnote: "'Cyberstalk' means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose."] As such, the injunction must be reformulated and narrowly tailored in order to more properly balance the desire to protect the Officer from harassment and stalking with the need to safeguard Appellant's First Amendment rights….

On remand, to the extent that the trial court decides to retain some level of restriction on Appellant's internet postings, it must narrow the scope of the injunction to those communications directed to the Officer with respect to "purely private matters" causing "substantial emotional distress" to the Officer or his family and "serving no legitimate purpose."

I think the opinion doesn't go far enough; for reasons given in my Northwestern article "One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and 'Cyberstalking,' " I think even speech that judges find to be on "private matters" and "serving no legitimate purpose" can't properly be enjoined, even if a judge concludes that it causes "substantial emotional distress." To give an example, if a police officer's (or anyone else's) ex-girlfriend wanted to post Facebook entries talking about how he cheated on her, I don't think a judge has any business ordering that these entries be taken down, even if he thinks they "serv[e] no legitimate purpose" and cause "substantial emotional distress."

Among other things, I don't think it should be up to the government to decide what purposes of otherwise protected speech (i.e., speech that doesn't fit within the existing exceptions, such as for threats or libel) are "legitimate." And I think that citizens likewise have the right to talk about police officers (and others) without a judge second-guessing whether their purposes are "legitimate."

But at least the court recognized that the trial court order was ridiculously overbroad—though unfortunately Neptune's speech was suppressed for more than a year while the appeal was pending, and the appeal was almost dismissed on several occasions because Neptune didn't have a lawyer and thus unsurprisingly made various procedural mistakes. As I mentioned in yesterday's post about a similar recent Montana order, 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.

I hope to blog about a couple more such recent cases in the coming days (and the article discusses still more).