Gjoni (Gamergate) First Amendment appeal dismissed as moot, but with reminder that trial judges 'have a duty to address the First Amendment implication of court orders'

|The Volokh Conspiracy |

Our readers may be acquainted with the Eron Gjoni/Zoë Quinn controversy, which is related to the broader Gamergate controversy: Gjoni had sharply criticized his ex-girlfriend, Quinn (Chelsea Van Valkenburg at the time), in an online post; this led some readers to post or send her harsh messages, which, Quinn reported, included "death and rape threats." Quinn then got a court order requiring Gjoni

not to post any further information about the [plaintiff] or her personal life on line or to encourage "hate mobs."

As I discussed last year, such an order is a clear First Amendment violation—it isn't limited to banning Gjoni from engaging in constitutionally unprotected speech (such as true threats or libel) but covers even clearly protected speech ("any further information about" Gjoni). Gjoni appealed the order, but in the meantime Quinn asked that the order be withdrawn; and the trial court indeed vacated the order and commanded that law enforcement destroy all copies of the order in its possession.

Because of this, the Massachusetts Appeals Court has just dismissed the appeal as moot—with the dissolution of the order, Gjoni

has obtained all the relief to which he could be entitled, and he no longer has a cognizable interest in whether the order was lawfully issued.

The court thus did not decide that Gjoni was guilty, or that Gjoni was innocent, or that the order was unconstitutional, or that the order was constitutional—because Quinn had gotten the order vacated, and Gjoni is no longer bound by it, the court concluded that there was nothing left to appeal.

In the process, though, the court did say something about the First Amendment analysis, and specifically about the refusal by one of the trial judges to even consider the First Amendment issue:

When the judge signaled his intention to extend the order for another year, Gjoni's counsel attempted to argue that the scope of the existing order infringed on his client's First Amendment rights. The judge declined to consider the issue, stating, "Counsel, I'll leave that to your appellate rights." …

[Footnote:] We note that the First Amendment issues were not moot when Gjoni attempted to raise them in the trial court. While we fully appreciate the difficulties of seeking to harmonize such interests with the countervailing interest of trying to protect Quinn from the uncontested deluge of harassment that she faced [from third parties -EV], it was not appropriate for the second judge to decline even to consider such issues. See Care & Protection of Edith, 421 Mass. 703, 705-706 (1996) (trial court judges have a duty to address the First Amendment implications of court orders by making specific findings). See also Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 713-714 (1990) (discussing a judge's obligations in issuing an injunction implicating protected First Amendment activities).

And I'm glad that the court stressed the significance of these case to "abuse prevention orders," because those cases offer some important guidance about the First Amendment (guidance that is indeed dictated by U.S. Supreme Court precedents). From the cited pages in Planned Parenthood (emphasis added), which "discuss[] a judge's obligations in issuing an injunction implicating protected First Amendment activities:

When issuing an injunction, a judge must differentiate between legal and illegal expressive activity, and must carefully tailor the injunction to avoid unconstitutionally infringing on activity protected by the First Amendment. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-915 (1982).

Indeed, later in the Planned Parenthood opinion the court stressed that it was upholding an injunction only because it "does no more than enjoin the defendants from engaging in illegal activity, such as trespass or obstruction of clinic entranceways, in their efforts to have their message heard. The injunction does not prohibit other types of expressive activity, such as praying, singing, or peaceful picketing, which does not unduly interfere with the rights of others."

Likewise, from the cited pages in Care & Protection of Edith, which vacated an injunction that banned a father from "discuss[ing] any aspect of the ongoing [child care and protection] proceedings with any member of the media … if it is reasonable to believe that the information communicated will lead to the identity of the subject children" (citations, of which there are many, omitted):

An injunction that forbids speech activities is a classic example of a prior restraint. Such a restraint presents a serious threat to rights of free speech. Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm. Any limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint. It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.

From what we have said it is clear that the February 22, 1995, order was and is an unlawful prior restraint on the right of the children's father to comment on the judicial proceedings and on the conduct of the department. The department has not identified a compelling State interest that needs protection. A general rule that bars any parent from directly or indirectly revealing the names of children subject to a care and protection proceeding will not do. There must be evidence and findings as to what effect the disclosure of the names of the particular children will or might have on them. In fact, in the course of the care and protection proceeding but before any order restricting disclosure had been entered, the department published the children's names in the newspaper, as a form of notice, in connection with its decision to seek a waiver of the need for the parents' consent to the adoption of the children. There is no finding that the names of the children had to be published in order to give effective notice of the department's decision to have the children adopted. Nor is there any explanation why the department's publication of the children's names did not violate the same "compelling" State interest in confidentiality that the department now asserts against the father.

In short, there are no findings of fact and rulings that demonstrate a compelling State interest that could only be met by the order entered in this case. We need not decide the merits of the father's claim that the order is vague and overbroad. We do note that what is barred and what is permitted under that order, particularly its third paragraph, is not well defined.

I wish that the Appeals Court had said more about the First Amendment issues here, since lower courts badly need guidance on the subject. But at least it has reminded courts that basic First Amendment prior restraint principles—including that "a judge must differentiate legal and illegal expressive activity, and must carefully tailor the injunction to avoid unconstitutionally infringing on activity protected by the First Amendment" (something that the lower court did not do here)—do apply to "abuse prevention orders."

Many thanks again to Daniel Lyne and Ted Folkman of Murphy & King, who were kind enough to serve as pro bono counsel for a friend-of-the-court brief that I filed in the case, 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)). And, to give credit where credit is due, I'm impressed by Zoë Quinn adopting "Tiberius" as her middle name.