The Volokh Conspiracy
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Today, the Massachusetts Appeals Court will be hearing arguments in Van Valkerburg v. Gjoni. That's the case—related to the "Gamergate" controversy—in which Chelsea Van Valkenburg (her name was misspelled in the court caption), now named Zoë Quinn, got an order requiring her ex-boyfriend Eron Gjoni
not to post any further information about the [plaintiff] or her personal life on line or to encourage "hate mobs."
I think this order violates the First Amendment, and I filed a friend-of-the-court brief so arguing, on behalf of Prof. Aaron Caplan (author of "Free Speech and Civil Harassment Orders," 64 Hastings L.J. 781 (2013)) and me (as author of "One-To-One Speech vs. One-To-Many Speech, Criminal Harassment Laws, and 'Cyberstalking,'" 107 Nw. U. L. Rev. 731 (2013)); Daniel Lyne and Ted Folkman of Murphy & King were kind enough to serve as our pro bono counsel. I quote the brief below, though you can also read the PDF version.
But I also want to note two procedural twists that this case has acquired. (As you know, if there's one thing we lawyers are good at, it is creating procedural twists.)
1. The restraining order in this case had been vacated, at Van Valkenburg's request. In some situations, that would render the case "moot," in the sense of leaving no real controversy for the court to decide.
But Massachusetts courts, it turns out—like the courts of other states—sometimes conclude that the expiration of a harassment protection order does not render an appeal moot. Part of the reason (see Seney v. Morhy (Mass. 2014), which involved a Little League mother/Little League assistant coach controversy, of all things) is that expired harassment prevention orders stay in law enforcement databases. That might not apply to the Gjoni order, which was apparently vacated and thus has to be removed from such databases. On the other hand, it may be that even such a vacated order isn't moot; as Bennett v. McGillicuddy, 71 Mass. App. Ct. 1120 (2008) (nonprecedential), held as to a vacated order, an appeal of such an order
[is] not moot because "[t]he defendant 'could be adversely affected by [the orders] in the event of future applications for an order under G.L. c. 209A or in bail proceedings … [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.'"
Moreover, the Massachusetts Guidelines for Judicial Practice: Abuse Prevention Proceedings (2011) say that "vacating [a ch. 209] order merely terminates the order as of the date it was vacated, with the record of the order remaining in the Statewide Registry of Civil Restraining Orders."
And in any event, another part of the reason for appellate review of terminated orders would still apply to vacated orders: Appellate review of the merits of harassment prevention orders advances '[u]niformity of treatment of litigants and the development of a consistent body of law.'" And what one trial court did in this case, other trial courts can do in future cases, unless an appellate court steps in to make clear that such broad orders are unconstitutional.
[UPDATE: I originally missed some of the reasons why the vacated order might have continuing legal effects on Gjoni; I've revised the post accordingly, to add the discussion of Bennett and the Guidelines for Judicial Practice.]
2. On top of this, though, just yesterday the Appeals Court issued this order (paragraph breaks added):
At the hearing on March 18, 2016, the parties should be prepared to discuss the following issues not addressed by their briefs:
1) the jurisdiction of the Boston Municipal Court judge to vacate the restraining order at issue in this case after the appeal had been docketed, and
2) how this court should proceed were we to conclude that the judge lacked such jurisdiction absent approval by this court.
If the Municipal Court judge lacked jurisdiction to vacate the restraining order—because the case was out of his hands and in the Appeals Court's hands—then the order hasn't actually been vacated, the case isn't moot, and the Appeals Court would have all the more reason to decide the First Amendment question.
We'll see what the Appeals Court does soon enough, as to the procedural questions and maybe the merits questions. In the meantime, here's our amicus brief:
* * *
I. 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.
II. 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.