Critic may not mention planning board member's "name in any 'email, blog, [T]witter or any document'"

|The Volokh Conspiracy |

That's from a court order issued in Massachusetts. A later court decision fortunately reversed this order, which was clearly unconstitutional; and Wednesday the Massachusetts high court (Van Liew v. Stansfield) held that even a narrower "harassment prevention order"—based in part on the critic's "calling [elected planning board member Colleen Stansfield] corrupt and a liar"—was illegal, and could form the basis of a malicious prosecution lawsuit by the critic against the politician. A good result, though it's unfortunate that the earlier orders were ever issued.

1. Colleen Stansfield is an elected planning board member in Chelmsford, Massachusetts. Roland Van Liew also lives in Chelmsford, and has actively and publicly disagreed with Stansfield on many matters. In 2012, he ran for town selectman, and understandably got into a political fight with Stansfield:

[O]n February 1, 2012, [Van Liew] held a public "meet and greet" event at the town library in connection with his candidacy. Stansfield attended the event and challenged various positions taken by Van Liew during the discussion. At the close of the event, Stansfield approached Van Liew and asked whether he was going to take part in upcoming debates. According to Stansfield, Van Liew responded loudly, "[O]f course … and I know what you do…. [Y]ou sent an anonymous letter to my wife and I'm coming after you," to which Stansfield responded, "[Y]ou are looking at a restraining order," and left. [According to Van Liew, he answered Stansfield's question without threatening her and told her, "I don't want any more anonymous letters sent to my wife," to which Stansfield responded, "You need a restraining order."]

"According to the police report regarding the meet and greet encounter … Stansfield stated that she attended the political event to 'rattle Van Liew's cage.'"

2. After this happened, Stansfield asked for a "harassment prevention order" against Van Liew, under Mass. Gen. Laws. ch. 258E, alleging four incidents:

  1. "Van Liew threatened Stansfield at the meet and greet event, where he was 'in [her] face' and told her he was 'coming after' her and she left shaking in fear."
  2. "Van Liew sent several mailings in the past year calling Stansfield corrupt and a liar."
  3. during a July 2011 recall election, "Van Liew again called her a liar and corrupt"; and
  4. at some time before 2009, "during their first interaction in a two-hour telephone call initiated by Stansfield," "Van Liew screamed at her and called her 'terrible names.'"

A judge held an initial ex parte hearing, at which Stansfield testified but Van Liew had no opportunity to be heard. There, "the judge issued a temporary harassment prevention order against Van Liew," ordering him "not to abuse, harass, or contact Stansfield and to stay away from Stansfield's residence." Five days later, the judge—at Stanfield's request—changed the order "to prevent Van Liew from mentioning Stansfield's name in any 'email, blog, [T]witter or any document through [I]nternet, television show, ad or otherwise.'"

The hearing for a permanent order was held before a different judge. There,

Stansfield testified about the verbal exchange at Van Liew's meet and greet event, and further testified that, in the past, Van Liew had called Stansfield "corrupt and a liar" with regard to her work on the planning board, specifically pointing to two electronic mail (e-mail) messages written by Van Liew, one of which Stansfield read to the judge. The e-mail message appears to mention Stansfield twice by name but goes on at great length to provide highly critical commentary about certain development projects that were being proposed for the town ….

The judge concluded that she could not find the requisite three acts of harassment for a harassment prevention order under [the Massachusetts harassment statute] and that some of the acts alleged by Stansfield were political speech, not threatening in any way; the judge vacated the temporary harassment prevention order.

Van Liew then sued Stansfield for malicious prosecution (despite its name, a tort claim alleging frivolous civil litigation) and abuse of process (a similar tort claim).

The complaint alleges that Stansfield sought the harassment prevention order against him "for the purpose of disrupting [Van Liew's] campaign" and that she sought the order even though she knew she lacked probable cause for its issuance.

A third judge then concluded that Van Liew "failed to show that the application for a harassment prevention order 'was devoid of any reasonable factual support.'" Eventually, the case came before the Massachusetts high court.

3. The Massachusetts high court reaffirmed that, under this particular harassment order law, "harassment" is limited to three or more acts of "fighting words" and "true threats." (This law is chapter 258E, a different provision from the chapter 209A abuse prevention order involved in the Van Valkerburg v. Gjoni "Gamergate" case.)

4. The high court held that, even assuming for the purposes of argument that the meet-and-greet "I'm coming after you" incident qualified as an act of harassment, the other three incidents didn't qualify. First, "the public accusations by Van Liew that Stansfield was 'corrupt and a liar'" were fully protected speech:

These remarks about a local public official constituted political speech and were at the core of the speech that the First Amendment to the United States Constitution protects. Although these types of public accusations may be "vehement, caustic, and sometimes unpleasantly sharp," this form of political speech must remain "uninhibited, robust, and wide-open." Van Liew's challenged accusations were neither fighting words nor true threats, but at most qualify as political hyperbole…. "The term 'true threat' has been adopted to help distinguish between words that literally threaten but have an expressive purpose such as political hyperbole, and words that are intended to place the target of the threat in fear[.]"

5. The high court ruled that Van Liew's remarks when Stansfield called him—Van Liew's speaking "very loudly … telling [her she] was wrong, uneducated or stupid"—were likewise protected. First, though Stansfield hadn't become an elected public official yet, they "involved matters of public interest."

Second, "[r]egardless of whether the discourse was political in nature," Van Liew's insults weren't fighting words—they weren't "so personally abusive that they [were] plainly likely to provoke a violent reaction and cause a breach of the peace"—or "true threats."

6. And the high court concluded that Stansfield's seeking of the harassment prevention order was thus "devoid of any reasonable factual support or any arguable basis in law."

Stansfield contends that the original issuance of a temporary harassment prevention order and its subsequent modification is proof that a reasonable person may conclude there was sufficient factual support for the petitioning activity. The argument fails.

Although a judge granted the request for a harassment prevention order after a brief ex parte hearing and the order was modified thereafter to increase its restrictions on Van Liew, that order was only temporary. Two weeks later, after a full hearing that presented Van Liew with his first opportunity to be heard, the temporary order was vacated. Contrast [an earlier precedent] (where judge extended restraining order for six months after evidentiary hearing and final judgment entered, "the judgment is conclusive evidence that the petitioning activity was not devoid of any reasonable factual support or arguable basis in law"). It was clear from the text of Stansfield's complaint for a harassment prevention order that no valid basis for such an order was presented; the insufficiency of facts pleaded could not be cured by a temporary order that was entered erroneously.

Van Liew is therefore entitled to sue for malicious prosecution, entitled to recover "[t]he costs of defending" himself, such as attorney fees.

* * *

This sounds quite right to me. As I've argued at length, such restraining order laws and related criminal "harassment" and "cyber-stalking" laws have often been applied in a way that violates the First Amendment. In particular, speech that is said about a person must be protected against such laws, even if unwanted speech to the person might in some situations be restricted. And indeed even speech to a person must often be constitutionally protected, especially when the person is an elected official or a candidate for office.

In recent years, we've seen more and more political officials—as well as others—using restraining order laws or "harassment" laws against critics; see, e.g., the case of the three Baldwin Park council members, the Georgia candidate getting a restraining order against a journalist, the judge getting an order gagging a critic, the police officer getting an order gagging a critic, the prominent businessman John Textor getting an order gagging a billionaire businessman Alki David, and the cases in the introduction to my "one-to-many speech" article. It's good to see that courts are pushing back against this, both in this decision and in others (e.g., the Baldwin Park cases, Chan v. Ellis, State v. Drahota, United States v. Cassidy, Neptune v. Lanoue, and David v. Textor).