Free Speech

No "Tone-Policing," Says a Court

Sound words from a federal district court decision handed down last year.

|The Volokh Conspiracy |

From Judge Josephine L. Staton's opinion in Principe v. Curry2018 WL 1406912 (C.D. Cal. Jan. 3, 2018):

This case arises from [Timothy Glen] Curry's communications regarding [Chris] Principe's purported association with OneCoin, a form of cryptocurrency. Principe alleges that Curry refers to Principe in a defamatory manner on social media platforms including Twitter, and that Curry "seeks to destroy [Principe's] consulting business." Principe brought a Complaint alleging two causes of action: defamation and intentional interference with contractual relations….

On October 20, 2017, Principe filed this Motion, seeking to enjoin Curry from harassment for a period of five years…. [Principe] moves the Court to enjoin Curry from "[c]ontacting [Principe], either directly or indirectly, by any means, including but not limited to, by telephone, mail, email, social media, or other electronic means"; from "[p]ublishing [Principe's] name in any media whatsoever"; and from "[c]ontacting any of [Principe's] known business associates concerning [Principe] in any manner or with respect to any topic concerning [Principe]."

Principe alleges that Curry has engaged in the following harassing behavior: sending him requests to connect on LinkedIn with messages indicating that he will "help put [Principe] in jail"; posting Tweets on Twitter asserting that Principe is part of a Ponzi scheme and criminal scam because of his association with OneCoin; and adding Principe to a group chat message using the mobile phone messenger WhatsApp, wherein Principe has received messages from Curry and "160 other people." He asserts that he has suffered "anxiety, indignation, and embarrassment" as a result. Moreover, he states that he has been "losing sleep, both because of the timing of the messages and because of the impact they are having on both [his] emotional state and [his] professional career." Principe provides screenshots of some of the messages, including accusations that Principe's "friends facilitate[d] money laundering," the statement that "I hope you don't have claustrophobia and the fear of small places #Onecoin #economic #fraud #ObviousSCAM #Ponzi," and multiple predictions that Principe will face jail time for his actions. Principe has not presented any Tweets or messages to the Court that contain actual threats of any kind….

Principe bases his Motion on California Code of Civil Procedure section 527.6, which allows for a "person who has suffered harassment … [to] seek a temporary restraining order and an order after hearing prohibiting harassment." … Section 527.6 defines harassment as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose." Moreover, the "course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." Finally, a course of conduct is "a pattern of conduct composed of a series of acts over a period of time … evidencing a continuity of person, including … sending harassing correspondence to an individual by any means …." The statute, as it must, exempts "constitutionally protected activity."

Curry has presented compelling evidence that his Twitter posts do not constitute harassment, as they serve "a legitimate purpose." Curry uses his opposition to argue the merits of Principe's defamation claim. He argues that Principe "has published magazines promoting OneCoin" and "has allowed himself to be used in promotional videos used by OneCoin to lure people in to [sic] investing." Curry is concerned that "OneCoin has defrauded and harmed people worldwide out of their money" and alleges that it is the "subject of worldwide police investigations." He describes his Tweets and messages as part of his "civic duty to continue reporting on OneCoin news-related developments." Without deciding the truth of the underlying content of Curry's Tweets, the Court is persuaded that his intentions to inform the public about OneCoin and to encourage investigation into its practices likely constitutes a legitimate purpose. The Court therefore cannot conclude that Principe is likely to succeed on the merits to show that the Curry's conduct has no legitimate purpose….

Principe argues that the injunction he seeks would not prevent Curry from tweeting about OneCoin, just about him. Curry asserts that his purpose in including Principe in his Tweets is that Principe is a promoter of OneCoin. Without deciding whether Principe actually promotes or is associated with OneCoin, the Court finds that Curry has a potentially meritorious argument that his purpose in tweeting about Principe as Principe relates to OneCoin is legitimate.

A plaintiff must also show that the complained-of course of conduct would cause a reasonable person to experience substantial emotional distress. At least one California court has imported the definition of "substantial" emotional distress from the context of the tort of intentional infliction of emotional distress, where it is defined as "highly unpleasant mental suffering or anguish … which entails such intense, enduring, and nontrivial emotional distress that 'no reasonable [person] in a civilized society should be expected to endure it.' " The Court appreciates that a reasonable person might experience some emotional distress at the prospect of a stranger on the Internet accusing them of criminal fraud. The Court is skeptical, however, that a reasonable person who experienced this sort of contact via these channels would experience substantial emotional distress.

Moreover, a reasonable person would take some action to prevent himself from receiving the messages, such as blocking their sender. This is particularly relevant in this case, as Principe is complaining about a single account user on various social media entities. Further, there are no threats of violence or allusions made to future physical confrontations: the entire course of conduct consists of social media contact. The Court has not found any authority to suggest that social media contact of this nature, alone, would cause a reasonable person to experience "substantial" emotional distress….

Principe argues that … [under the proposed injunction,] Curry would "simply be prevented from inflicting … harm" on him but would "still be able to express his personal views in a non-harassing, professional manner." But Principe has not established a likelihood of success in establishing that Curry's behavior is, indeed, harassment.

It is not appropriate—and indeed would violate the First Amendment—for the Court to engage in tone-policing in this manner. In short, if Curry's speech is not harassment, then it is protected by the Constitution and the injunction would be an impermissible prior restraint….

The parties eventually settled.

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  1. Sound words. I get it.

    1. An accident — I didn’t get it until just now, after reading your comment — but a fortunate one.

  2. Great article! One little thing: the judge’s last name is Staton, not Stanson.

    1. Whoops, fixed, thanks!

  3. That’s what I would have expected for the analysis of communications about him. I am a bit surprised that he also lost on the question of the unwanted communications to him. While LinkedIn and WhatsApp are social media platforms, the LinkedIn ‘request to connect’ function is a person-to-person communication more akin to email or telephone. And adding someone to a group chat without their permission has to infringe on some rule, doesn’t it?

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