The Volokh Conspiracy
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Stacy David Bernstein is a clinical forensic psychologist—apparently a fairly prominent expert, who sometimes gives talks and classes at the FBI and other law enforcement organizations. He was also, until January 2015, a member of the Connecticut Board of Firearms Permit Examiners, a position to which he was appointed by the governor.
It has been illegal for about a year, however, for Robert Serafinowicz to "Post any information, whether adverse or otherwise, pertaining to [Bernstein] on any website for any purpose." It has also been illegal for Serafinowicz to "Contact any person, including, but not limited to [Bernstein's] past, current and prospective clients, family members and his child's educators in any manner for any purpose"; presumably, that can't mean quite any person in any manner for any purpose, so I assume it means any person sufficiently connected to Bernstein. If Serafinowicz posts anything about Bernstein, he will be in violation of a court order and could be thrown in jail for contempt of court.
How can this be? Welcome to the wild world of "civil protective order[s]," in which courts all over the country regularly enter orders that clearly violate the First Amendment. Here are the details on this one.
1. To begin with, Connecticut law lets judges issue orders to protect victims of "stalking," defined as:
(a) … knowingly engag[ing] in a course of conduct directed at a specific person that would cause a reasonable person to fear for such person's physical safety or the physical safety of a third person; or …
(b) … intentionally, and for no legitimate purpose, engag[ing] in a course of conduct directed at a specific person that would cause a reasonable person to fear that such person's employment, business or career is threatened, where (A) such conduct consists of the active telephoning to, appearing at or initiating communication or contact at such other person's place of employment or business, provided the actor was previously and clearly informed to cease such conduct, and (B) such conduct does not consist of constitutionally protected activity.
"Course of conduct" means "two or more acts, including, but not limited to, acts in which a person directly, indirectly or through a third party, by any action, method, device or means, (1) follows, lies in wait for, monitors, observes, surveils, threatens, harasses, communicates with or sends unwanted gifts to, a person, or (2) interferes with a person's property."
2. Now so far it seems that the law, if it applies to speech, might be interpreted as limited to true threats or to other constitutionally unprotected speech. But, like many other courts, the courts here seem to take the view that, once a judge finds some restrictable statement in the past, he can use that as a hook to forbid a vast range of speech in the future—including fully constitutionally protected speech. That's what happened here.
Serafinowicz was a lawyer who had worked with Bernstein and became a close friend of Bernstein's. But then Serafinowicz turned against Bernstein. According to Bernstein, Serafinowicz left some "bizarre emails and voice messages" for Bernstein, but—and the trial court's opinion focuses primarily on this—Serafinowicz also started harshly criticizing Bernstein, especially to Bernstein's professional contacts.
Serafinowicz e-mailed "the Connecticut Board of Firearms Permit Examiners, the State Board of Health and the American Psychological Association," about "certain events in Bernstein's past that, according to Serafinowicz, prove that Bernstein was unstable, deviant and 'a very sick man.' " Serafinowicz posted similar items on his own blog; posted them as comments on the Psychology Today site (apparently attached to columns that Bernstein had written); e-mailed them to the L.A. Police Department, to which Bernstein had given a talk a few months before; and e-mailed them to Firestorm, "a security firm for which Bernstein does consulting work on a routine basis."
- sent around "documents that showed that an ex parte Abuse Prevention Order was issued against Bernstein in December 2009 by the Boston Municipal Court in favor of Rachel I., a woman with whom Bernstein had, according to him, a casual dating relationship"; apparently, Serafinowicz may have represented Bernstein in that case, which might have made his later disclosure of the documents a violation of his attorney-client obligations;
- "provided to third parties documents showing that a civil judgment, presently unsatisfied, was entered against Bernstein by the Superior Court for the judicial district of New Britain for his nonpayment of a student loan from Jacksonville University";
- "questioned whether Bernstein had a Florida criminal record and whether he attended, as claimed, Yale and Harvard Universities";
- stated, after Bernstein had quit the Board of Firearms Permit Examiners, that Bernstein had been forced to resign from the Board as a result of Serafinowicz's allegations;
- "contacted officials employed by the school system where Bernstein's son is in the fourth grade and where Bernstein is a member of that community's school safety board," "apparently warn[ing] the school official that Bernstein was "a danger to children."
None of the alleged statements involved specific threats. (When asked in court by Serafinowicz, "have I every physically threatened you?," Bernstein said "No.")
Some of the statements may have been factual, though perhaps framed in an unduly negative light. There apparently was a civil judgment for the student loan. The trial court said that he had seen the judgment and that "we all know that there was a judgment."
There was a copy of the 2009 ex parte abuse prevention order introduced, and the order had the "there is a substantial likelihood of immediate danger of abuse" box checked, which meant that Bernstein had to surrender any firearms he might possess while the order was in effect. (That was an item that Serafinowicz pointed to in faulting Serafinowicz, especially as to his membership on the Board of Firearms Permit Examiners.) There was some question about the validity of the order, though: When I called Bernstein's lawyer, he said that the 2009 ex parte abuse prevention order had never been properly served on Bernstein, because it had a long-out-of-date address. The trial judge made no findings that the allegations about the 2009 order were false.
The judge also didn't seem to make any findings that the allegations about a Florida criminal charge were false. When asked, "Were you ever arrested in the State of Florida?," Bernstein responded, "That I recall, no." (The alleged incident was apparently 30 years earlier.) Bernstein then added that he might have had some incident related to driving on a suspended license, because his license may have "expired or been suspended or something."
Other statements may have been false, depending on exactly how they were put on the blog posts. As the trial judge noted, Bernstein testified that he had indeed "completed his pre-doctoral internship at Yale and his post-doctoral residency at Harvard," and there seemed to be no evidence to the contrary. At the same time, the judge had characterized Serafinowicz's posts as questioning whether Bernstein had "attended … Yale and Harvard Universities." Bernstein apparently didn't attend those schools in one sense—his doctorate is apparently from Albizu University in Miami—though Bernstein testified that the internship and residency were required for the doctorate, so one can label the Yale and Harvard work as attending. (Serafinowicz seemed to imply that, once he learned that Bernstein had indeed been connected with Yale and Harvard, he stopped making this allegation.)
The judge did specifically conclude that the allegation that Bernstein resigned from the Board of Firearms Permit Examiners was false, finding credible Bernstein's testimony that Bernstein "resigned from the board due to extensive demands put upon his time" and that "Serafinowicz's letter play[ed] no part in his resignation." But in any event Bernstein didn't sue Serafinowicz for libel. It's not clear that Serafinowicz's allegation that Bernstein resigned as a result of Serafinowicz's letters would be libelous even if it turns out that Bernstein's actual motivation for resigning was something else. And the normal rules required for libel findings weren't used.
3. In any event, because of these criticisms by Serafinowicz—and perhaps because the court viewed Serafinowicz's behavior as "irrational"—the court concluded that Serafinowicz's conduct amounted to criminal stalking. Serafinowicz's behavior had "reasonably caused Bernstein to fear that he was being 'hunted' by Serafinowicz"; Serafinowicz's "unjustified and ill-motivated course of conduct, in particular his obsessive and irrational behavior that characterized such conduct, it was and is reasonable for Bernstein to fear for his safety and that of his family." And Bernstein also reasonably "fear[ed] that his employment, business and career … [were] threatened" by Serafinowicz's speech (though the court never discussed the separate element of the fear-for-career prong, which is whether the speech "consist[s] of constitutionally protected activity").
And apparently once these findings were made, the court thought that the sky was the limit: It could go beyond just forbidding constitutionally unprotected speech—such as true threats of criminal conduct, or even libel—and instead totally ban Serafinowicz from speaking about Bernstein, even when the statements were accurate allegations or expressions of opinion. (The ordered was scheduled to last for a year, and Serafinowicz's lawyer tells me that it will expire on May 29 and that Bernstein is not applying for a renewal.)
Earlier this month, the Appellate Court of Connecticut affirmed. It concluded that Serafinowicz's trial lawyer hadn't properly made the First Amendment argument at trial, and that the appellate lawyer hadn't properly argued on appeal why the court should nonetheless consider the First Amendment question. But the Connecticut Supreme Court has held that constitutional claims can be considered on appeal even under those circumstances (as the Appellate Court acknowledged in footnote 5); so the Appellate Court went on to the merits:
Most importantly, the defendant has not argued how the first amendment should apply to a claim of stalking pursuant to § 53a-181d. He does not argue what "constitutionally protected activity" means in the context of § 53a-181d (b)(2)(B).
But Serafinowicz's brief does contain an extended analysis of why criticism of a gubernatorial appointee and frequent lecturer to law enforcement is indeed "constitutionally protected activity." And indeed even speech that is aimed at ruining people's business relations is constitutionally protected, unless the particular statement is found to be both false and defamatory. (See, e.g., Organization for a Better Austin v. Keefe (1971); NAACP v. Claiborne Hardware Co. (1982).)
Bernstein's brief argues that Serafinowicz's speech is not protected, because it is "defamatory"; but it never explains how that covers the statements as to which there was no finding of falsehood, or statements that are expressions of opinion (as allegations that Bernstein is "unstable" and "deviant" are likely to be).
And more importantly, the order by its terms prohibits much more than just constitutionally unprotected activity—it prohibits all posts by Serafinowicz about Bernstein, period. Serafinowicz's brief, after arguing that his past speech was protected by the First Amendment, also argued that the restriction on future speech was unconstitutional:
The judgment from which the defendant appeals in this case is expressly based upon the defendant's engagement in activities protected by his state and federal free speech rights and not only does it violate these constitutional commands by doing so but goes farther and imposes prior restraint upon continuing to engage in such rights. As such, the judgment here is intolerable in a free society and must be reversed.
That seems quite right to me, and I think the Appellate Court seriously erred in upholding the order in spite of this argument.
4. Finally, I acknowledge that the trial court viewed Serafinowicz as "obsessive and irrational." Perhaps that's indeed true, and I can see why a court might therefore want to suppress all speech by Serafinowicz about the target of his obsession. Serafinowicz, in this view, is irrational. His speech is harming Bernstein economically and emotionally. The speech is unlikely to be valuable to anyone, even if it doesn't fit within the First Amendment exceptions (such as for defamation or true threats).
To be sure, suppressing Serafinowicz's speech wouldn't make Bernstein feel any less worried about possible future violence by Serafinowicz—that worry (if there is one; Bernstein testified that Serafinowicz had never physically threatened him) would stem from what Bernstein knows about Serafinowicz and would remain regardless of whether Serafinowicz can keep talking about Bernstein. But suppressing the speech may lessen the professional harm to Bernstein. What's lost if this allegedly obsessive and irrational person can't talk? Indeed, I think this helps explain many of the overbroad "anti-stalking" injunctions that I've blogged about.
Yet surely a person can't be stripped of his First Amendment rights to talk about some subject simply because one judge concludes—by the normal civil preponderance of the evidence standard—that the guy is kind of a nut and has engaged in constitutionally unprotected speech in the past. Among many other things, the potential for judicial abuse of such a vague standard is obvious; and if the rule of law demands anything, it demands that people's free speech rights can't be just taken away by judges who think that they're "obsessive and irrational."
There's a reason that libel law standards have been crafted so carefully by courts, and why even those courts that have recently allowed injunctions in libel cases insist that the injunction be limited to speech found to be libelous. (See, e.g., Balboa Island Village Inn, Inc. v. Lemen (Cal. 2007). Once a lone judge can say, "I think you're obsessive and irrational, so stop speaking about this person or this business," all of our free speech rights are at risk.