Can Excluding Someone from a Town Be a Proper Remedy in a Libel/Harassment Case?

Yes, said the New Hampshire Supreme Court; is that right?

|The Volokh Conspiracy |

From a New Hampshire Supreme Court decision earlier this year in MacDonald v. Jacobs:

The record supports the following facts. The defendant [Lisa Jacobs] seasonally resides in Fitzwilliam. According to the plaintiffs [Lorraine and Peter MacDonald], in 2012 they purchased a vacation home that abuts or is near the defendant's family's property.

Thereafter, the defendant began letter-writing campaigns in which she falsely accused the plaintiffs of, among other things, a variety of illegal activities. In 2016, the plaintiffs sued the defendant for defamation. Following a trial, the jury found that the defendant's statements were defamatory and that they were made with malice, thereby warranting the award of special damages. In addition, the trial court, finding the defendant's statements "vast and disturbing," issued a permanent injunction prohibiting the defendant from, inter alia, going within a five-mile radius of the plaintiffs' home in Fitzwilliam [where defendant's family has a summer home] and from entering the plaintiffs' hometown in Sterling, Massachusetts….

The trial court found that the geographical restrictions it imposed were "appropriate because a less restrictive order would be ineffective." According to the court, the plaintiffs' "fear for their safety is a rational response to [the defendant's] relentless and increasingly intimidating behavior," and the defendant's "several threats" toward the plaintiffs provided a "compelling interest" for granting the injunction. Thus, the trial court reasoned that preventing the defendant from accessing her family's summer home in Fitzwilliam, "the epicenter from which all of [her] attacks have stemmed, [was] an appropriate, narrowly tailored restriction to address this interest."

The trial court further found that "[the defendant] has more than demonstrated her belief that she has a right to harass the [plaintiffs] and that she has an absolute fixation on the victims. She has published defamatory, false materials; contacted numerous federal and state authorities to report these falsities; threatened the [plaintiffs'] lives; and travelled to the [plaintiffs'] hometown in Massachusetts to solicit signatures to support her false and extreme accusations. [The defendant] has also given the Court no indication that she will abide by a more narrow court order, and she has shown no contrition for any of her actions—actions that were defamatory, threatening, and even criminal, as she was arrested for impersonating an agent of the New Hampshire Attorney General a week before trial and yet testified during the defamation case that she was such an agent.

"Even when the defamation case was approaching trial, and even with standing orders from this Court to refrain from harassing the [plaintiffs], [the defendant] published more defamatory material. [The defendant's] increasingly threatening actions and her failure to follow previous court orders make geographical banishments necessary.

"[The defendant] has harassed the [plaintiffs] … for no apparent reason and they have been driven to desperation by continuous harassment…. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction … will provide them with a margin of territorial safety in which they can live in peace. This Court also considered the fact that the [Fitzwilliam] property, where [the defendant] has occasionally resided, is not a year-round residence, and that [the defendant] was not at the residence during the summer months of 2017…. [The defendant], therefore, would not have her liberty and right to travel overly burdened by the five-mile restriction around the [plaintiffs'] Fitzwilliam residence. Similarly, since [the defendant] is not a resident of Sterling, and has not evidenced reasons to visit Sterling other than to garner signatures for her false affidavits implicating the [plaintiffs], preventing her from entering Sterling would not unconstitutionally constrict her right to travel."

To the extent the defendant challenges the injunction because there was insufficient evidence for the trial court to conclude that she presents a danger to others, we disagree. The trial court relied upon evidence that the defendant sent a letter to several state and federal authorities, including the Boston, Massachusetts office of the Federal Bureau of Investigation (FBI), stating that she had "been having fears of homicidal ideation of having to be put in the position of killing the [plaintiffs] and or their drunken tenants." The trial court also found that in her letter to the FBI the defendant stated that she had considered hiring a federal contractor "with an assault weapon to try to protect [her] to help [her] calm down" when she was at the house in Fitzwilliam, that "issues between neighbors blossom to the point until someday one neighbor gets a gun and shoots the other neighbor," and that she had "thought about getting a gun."

Based upon this evidence, the trial court found that the defendant is "irrational and quite capable of inflicting harm — both physical and emotional" on the plaintiffs, that she believes she is a "surrogate" of multiple law enforcement agencies, including the New Hampshire Attorney General and the New Hampshire State Police, and that "[i]t is quite rational to conclude that she could convince herself — as a self-proclaimed law enforcement agent — to arm herself," which would be a "disastrous, but foreseeable, result." Thus, there is ample support in the record to support the trial court's determination that the defendant presents a danger to others….

[T]o the extent that the defendant argues that the injunction unconstitutionally restricts her freedom of travel, she has failed to develop this argument sufficiently for our review.

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  1. If New Hampshire has red flag laws, I’d say “Red flag! Red flag!”

    1. The Gov just vetoed the Red Flag bill as it seized firearms without due process and provided no mental illness assessment or treatment. While the accused said she thought about getting a gun, she had no gun to seize, it appears.

    2. The Liberatarian solution would be to wait until the lunatic actually broke a law to act.

      The Democratic solution would be to ban guns nationwide to protect the plaintiff.

      The Establishment GOP solution would be to lock up the lunatic until she comes to her senses.

      The populist GOP solution would be to require everyone in the town not otherwise ineligible to go armed so they can keep the peace.

  2. “She has published defamatory, false materials; contacted numerous federal and state authorities to report these falsities; threatened the [plaintiffs’] lives; and travelled to the [plaintiffs’] hometown in Massachusetts to solicit signatures to support her false and extreme accusations.”

    Where do these crazies get the time and money?!?

  3. I’m a bit unclear about how excluding her from this zone impacts 95% of the named activities. But I’m pretty sure that it is fairly routine to enjoin people to stay some specified distance from other people, this is similar.

    1. Yeah, I had the same thought. You can defame someone from the other side of the country. See Calder v. Jones, 465 U.S. 783 (1984)

      1. But, of course, that part of it was justified on the basis that the defendant might actually be a physical danger at some point.

        At which point ordering her not to enter the town would obviously protect everybody there. Strange that they didn’t just enjoin her from attacking people, while they were at it.

        But the stupidity of it aside, enjoining people from entering a particular space isn’t that unprecedented.

        1. Pretty unusual as a civil remedy for defamation, though. Are we sure this isn’t a separate claim for a restraining order of some kind? Much more like quasi-criminal punishment than a civil remedy for a past wrong.

          Also, how does the judge have jurisdiction to decide where the defendant can’t go in a different state?

          1. By having the defendant be a party to the case before the judge, I assume.

    2. Brett Bellmore: Isn’t there a pretty significant difference between ordering someone to stay, say, 300 feet away from someone’s home, and ordering someone to stay away from a whole town? I would think the latter is much more serious burden on liberty than the former. To be sure, we impose even more serious burdens through the criminal justice process, and through mental health commitments; but those processes require considerably higher burdens of proof than in a typical civil injunction case.

      1. Eh, I’m not commenting on whether it was a reasonable ruling. Just on whether a judge can do that sort of thing. They can, clearly. There isn’t any bright line between 300 feet and five miles.

        I don’t see this turning out well; We’ve got a highly motivated nutcase, and the judge expects an invisible line on the pavement to stop her? Rather than infuriating her because she’s now barred from her own family’s vacation home?

        He didn’t defuse the bomb, he lit the fuse.

        1. To be expected as the court only as 1.2 stars from 14 google reviews. /sarcasm, ok I’ll stop now

        2. It’s the return of exile as a punishment.

          “You don’t have to go to jail, but you can’t stay here.”

        3. I completely agree, Brett. What I find most disturbing about this is that here we have a woman who is obviously mentally ill, and she is treated by the judicial system as if she is competent. No person who does the things she has done will pay any great heed to a court order. In fact, she has violated court orders before, in this very case. Nor should she be treated as a criminal. She should be treated as a potentially violent mentally ill person, and involuntarily committed for observation and treatment.

      2. Having spend quite some time in NH the greater burden is caused by the fact that in many places there are limited roads and circumnavigating Fitzwilliam could place a substantial burden depending on the source and destination. Center Fitzwilliam is less than 5 miles from the MA border and scarcely 5 miles from US 202 so depending on the exact location it could be many extra miles to work around. Obviously the greater the distance the lower the burden so Boston to Keene it probably isn’t an issue but Winchendon to Keene could be a hassle if US 202 is out of the equation.

        1. The greater burden is the order forbidding her from entering Sterling, MA. I190, which runs from Worcester, MA to north central MA, runs right through Sterling. If the defendant lives in the Worcester area or northern/western Rhode Island, this order makes it very difficult for defendant to travel north of Worcester. Circumnavigating Fitzwilliam is rather easy. You just have to go through Jaffrey, NH to get to Keene and points north.

  4. If the descriptions of this someone’s activities are half-way accurate, this someone ought to be included in a looney bin, not excluded from a town.

    1. My thoughts too. She should be in a mental hospital, not free to roam the streets.

  5. Maybe the plaintiffs could say they are sorry for doing all those nasty things.

  6. Shouldn’t there be some mention of what this person was claiming, and the evidence that her claims are false?

    1. Well, the statements WERE found to be defamatory, by a jury. So no, I don’t think it’s urgently necessary to repeat the defamation. For legal purposes we can presume them to be false.

      Though of course Eugene would be free to do so if he thought it relevant to the legal issue here.

    2. Ms. Jacobs conducted a letter writing campaign accusing the MacDonalds of attempted murder, being liars and sociopaths, running a deceptive rental business, engaging in witness tampering and stalking, using illegal drugs, being alcoholics, driving drunk, and vandalizing her house.

      https://alfanolawoffice.com/the-neighbor-from-hell/

      1. Also from that website

        The jury went further and also awarded enhanced damages against Ms. Jacobs because she acted with “actual malice,” which the court defined as ill will, hatred, hostility or evil motive.

        Just when the VC readership have absorbed that in defamation law “actual malice” doesn’t really mean actual malice, this court decides that it does.

        1. In this case actual malice.

          1. Actual actual malice. Stupid auto-mistake. Yes, I really did mean to type “actual” twice.

      2. Sounds like she thought her new neighbors might be the Clintons.

    3. In general, once defamation has been adjudicated and proved, it is unwise to republish it. Bad manners, too.

      1. I didn’t “republish” the defamation, I posted a general description of what the defamation was (within the context that it has been proven to be defamatory).

        1. Jeff, I was responding to the question from Dan S.

          But while we are at it, can you imagine any reason why you would not welcome a Google search which linked “murder,” and your name, and which proved productive? For instance, what assurance would you have that the results would refer back to anything which showed it was all defamatory, instead of to some copy of the original allegations.

          More generally, this is just another example to show why the notion of consequence-free publishing with no editing had to wait for centuries to find folks foolish enough to give it a try.

          1. The question isn’t whether he’d “welcome” it. The question is whether he’d be entitled to not have it happen.

            People have the right to do all sorts of things we don’t “welcome”; The unwelcomed speech we actually have any right to be free of is limited to some quite narrow categories.

            Because other people have rights, too.

            1. Brett, proven false defamation is not among anyone’s rights, not to read it, nor to hear it, nor to republish it. False defamation is unprotected by the 1A.

              I understand that anonymous right wing crazies on the internet wish that were otherwise, because their highest ideal for speech is to weaponize it. I suggest this blog gives those folks a bit too much encouragement.

  7. Sorry if this was addressed and I missed it, but if the objective was to keep the two sides apart, shouldn’t the restriction be limited to those times when the plaintiffs were at their vacation home?

    1. That would require someone keeping the defendant regularly informed as to whether the plaintiffs are at the vacation home or not.

      Beyond the practical concerns of such a thing, it also would make it even easier for the defendant to act on their violent ideations.

      So no, that limit is probably not wise.

      1. Eugene,
        What is the law regarding enforcement of a restraining order? 3 hypos (assume I got a restraining order against you).
        1. You are shopping in a supermarket, and I then walk in. Do you have to leave your groceries in your cart and depart the store immediately? (I’m assuming the reverse is easier…if I am shopping and you then walk in and see me, it makes sense that you leave right away and wait outside until I finish my shopping.)
        2. You are having a party at a park. I come by and have my own event at that park. (The park is not big enough for both of us to be there without violating the terms of the order.) Can you stay, since you set up shop in a location that was fine until I decided to come to the park?
        3. You posted on Facebook in advance about your party. I, separately post on my own FB page that one reason I am picking this park for my own event is that it will screw with your own party. (ie, I’m forcing a violation for ‘bad’ motives). Does my intent matter? (Obviously, if I see you and run towards you–closing that gap so that you’re now within the forbidden proximity–it can’t be permissible to punish you. Right??)

        I am assuming that there must be some sort of ‘reasonable person’ standard at play, in addition to you having actual knowledge that I’m nearby.

  8. Well, the title says libel/harassment, but it seems like credible death threats are the real issue here.

  9. Some of this activity seems criminal, like making false police reports impersonating an officer and threatening to injure or kill someone.

    Perhaps there should be a criminal indictment. In fact the harassment went on for so long I wonder why there wasn’t an arrest, but perhaps there was and the penalties weren’t sufficient or she got off because she’ just plain crazy.

    1. I would be inclined to believe your second hypothesis; she got off because she is crazy. After all, the ACLU would be on the local government’s azz for going after a “harmless” person with a mental health issue.

  10. Can Trump be sanctioned like the defendant here? Trump has made “vast and disturbing” false claims, “falsely accused [people] of, among other things, a variety of illegal activities”, “has published defamatory, false materials”, “contacted numerous federal and state authorities to report these falsities”, and “has shown no contrition for any of [his] actions”.

    1. “falsely accused [people] of, among other things, a variety of illegal activities”,

      I’m pretty sure you don’t want to give him a chance to engage in discovery…

      1. touche. that’s why they doth protest too much.

      2. Oh he has tried to “engage in discovery”, e.g. by appointing a Kobach panel to prove true his claim of “millions” of illegals voting (the panel gave up), and by sending Barr to investigate the FBI’s investigation of his campaign. In regards to birtherism, not sure what “discovery” could be engaged in.

        1. In terms of birtherism, all Trump would need to beat a defamation rap would be a copy of Obama’s bio, distributed by his publicist. You know, the one that started this thing off by claiming he was born in Kenya?

          Sure, it was a lie, but I really don’t see how you can get convicted of defamation by repeating the plaintiff’s own lie.

          1. That is why Progressives whine but never file in court because of discovery. It might show records pointing to false claims ala Warren.
            Bio from publicist
            Birth certificate from Hawaii
            University/college entrance/eligibility records
            Confirmation of SSAN and where/why issued

  11. I would think such an injunction might be possible under some circumstances. But I would think an injunction encompassing whole towns would require more than defamation alone, at least threats or something like that.

    We don’t generally let assault victims have such injunctions against their assailants.

    1. A difficulty here is that the plaintiffs don’t seem to have alleged, and didn’t get a verdict in their favor, on more than definition. If there was additional conduct beyond defamation, and there may well have been, this needs to be alleged, proven, and result in a verdict before sanctions based on it can be imposed.

      1. IIUC the defendant, in her own testimony, provided the evidence of additional conduct beyond defamation.

  12. I’m having trouble understanding the “five mile” order.
    That seems ridiculously harsh. The kook doesn’t have long range artillery.
    But it looks like a unanimous decision by the reviewing court, so maybe I’m missing something.

  13. Would criminal charges be applicable? You’d think she’d attract the attentions of the police, what with impersonating an officer and all.

    1. Oh, she got arrested for *that.* Did they check their law books to see if her threats to “civilians” were crimes, as well?

      I’m not familiar with NH law, so for all I know the threats may not have been crimes.

  14. I’m pleased to see that the useful and long underused remedy of banishment is making a comeback.

    Next step, reinstitution of the stocks and pillory?

  15. These nut (lay term) cases can be truly indefatigable, as I well know from personal experience.

    About 25 years ago, my late father evicted the pharmacist in our medical office building for non-payment of rent, with the sheriff putting everything out in front of the building on the street. And so the saga, which continues to this day, began.

    The pharmacist, henceforth “A,” a Nigerian, alleged he was being mistreated on account of his race and kept pursuing his “international human rights” in various courts. His claims were utterly without merit, but we spent an amount approaching 6 figures to swat him away.

    Frustrated by his failure to get what he imagined to be justice in state and federal courts, and very upset by the disrespectful way more than one judge admonished him to move on because he had not even a glimmer of a case, “A” turned to personal harassment. My father passed away in 1999, so was unreachable by “A,” who redirected himself in letter to me, my father’s oldest, plus my two siblings, my father’s divorced wife (my mother), my two adult children, our lawyer, our lawyer’s wife, and the property manager (now deceased too). And the fun has continued on an annual basis ever since, July 20th being the anniversary day he says will live in infamy. He says that like the Jews have sworn not to forget or forgive what the Nazis did to them, he will never forget or forgive, though he has stated an amount of liquidated damages. (The last time I looked, he said with interest the amount we owed him has grown to more than $100M.)

    Oh so many more details, but not legally consequential, though anecdotally rich.

    Anyway, what will happen if Jacobs cannot resist further tormenting the MacDonalds? Might she face jail time? How much were the Ps awarded in damages? I think it a good thing that the D is an XX rather than an XY, because XYs are so much greater a threat of expressing themselves through violence. I wonder if a court mandated psych eval isn’t in her future.

    1. Which is pretty much what I was wondering. The description is classic paranoid schizophrenia, and by her actions, she’s clearly a danger to herself and to others. If anyone needs involuntary commitment, this is the patient.

      What happens next? She clearly is not compliant with the court-imposed restrictions on her behavior. And when she physically attacks, maybe kills one or both plaintiffs—or others—and pleads innocence because of insanity? In this case, that might be a valid defense for her: she’s evidently insane.

      What about negligence on the part of the court? Do they not have a duty to protect going forward?

  16. I can see an exclusion order stemming from a harassment case. You have two questions rolled up into one… 1) is an exclusion order a proper remedy at all, and 2) if it is, is it proper when applied to people who commit this crime.

    My state passed a statute creating several “exclusion zones” and allowing 90-day exclusions for two crimes: prostitution and drug sales. The zones were fairly substantial, and included all the public property in a neighborhood-size zone (coincidentally neighborhoods that had lots of street prostitution and drug sales). What the exclusion orders did was allow the cops to pick up repeat offenders without probable cause that they were re-offending, because just being there while excluded was the offense.

  17. “a “compelling interest” for granting the injunction…

    Ah yes, the magic words that courts use to make constitutional claims disappear.

    1. If claim A is better than claim B, then claim B SHOULD disappear.

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