"Personal Protection Order" Statute May Be Unconstitutional to the Extent It Authorizes Ex Parte Orders That Restrict Speech

The court is discussing orders "enjoining protected speech or conduct ... without an adversarial hearing or adjudication on the merits that the speech or conduct is not protected."

From today's decision by Chief Judge Hala Jarbou (W.D. Mich.) in Booth v. Fink; seems correct to me, and applicable to other states besides Michigan:

Booth, who worked as a corrections officer for the MDOC [Michigan Department of Correcitons], alleges that in January 2022, Fink investigated him for a purported violation of the MDOC's social media policy after Booth posted a video on his Facebook account showing him being "sucker punched" by a prisoner. Booth alleges he filed a lawsuit against [MDOC internal affairs investigator] Fink challenging Fink's interpretation of the policy.

Later, in May 2023, the Michigan State Police arrested Fink in connection with a criminal investigation. On June 27, 2023, Fink was arraigned at the Livingston County District Court due to criminal charges against him related to prostitution. Booth made a post on Facebook regarding these events. The post consists of a video of Fink leaving his vehicle and walking into the county courthouse, as well as a copy of a docket sheet showing that Fink was scheduled for a probable cause hearing in a criminal case against him. In the post, Booth wrote, "Someone doesn't look to happy!!!" Booth is the one who took the video of Fink….

The day after the court hearing, Fink applied for an ex parte personal protection order ("PPO") against Booth from the Clinton County Circuit Court. According to the petition, Booth and Fink were both employees of the MDOC at the Charles Egeler Reception and Guidance Center. Booth had filed a federal lawsuit against Fink regarding Fink's investigation of Booth. Fink claimed that he was ordered to not have contact with Booth due to that lawsuit. Fink also contended that the MDOC had suspended Booth from work in April 2023 due to a "threatening" Facebook post in which Booth named Fink and other MDOC employees.

According to Fink, Booth also attended a court hearing involving Fink that had "nothing to do with [Booth], the MDOC, or [Fink's] employment with the MDOC." Fink contended that, at the hearing, Booth placed a camera in Fink's face, followed him around the courtroom taking pictures, stood next to him while Fink sat at a table, entered the courtroom when Fink did, and later followed Fink out of the courtroom. Booth then filmed Fink as he walked out of the courthouse and filmed him walking toward his vehicle and then driving away.

As further evidence to support his petition for the PPO, Fink provided a copy of a "stop order" from the MDOC prohibiting Booth from entering MDOC grounds, which Booth had posted on his Facebook page. Fink appears to have also provided the court a printed copy of the Facebook post by Booth with the comment "Someone doesn't look to happy!!!" The printed copy included one frame of the video showing Fink standing outside the county courthouse.

The state court issued the ex parte PPO on June 29, 2023, prohibiting Booth from "following or appearing within sight of" Fink, appearing at Fink's residence, "approaching or confronting [Fink] in a public place or on private property," or "photographing or videotaping" Fink. The ex parte PPO also prohibited Booth from "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to [Mich Comp. Laws §] 750.411s." …

Michigan's nondomestic PPO statute allows an individual to seek a PPO in circuit court to enjoin stalking or harassment, i.e., "conduct that is prohibited under section 411h, 411i, or 411s of the Michigan penal code, 1931 PA 328, MCL 750.411h, 750.411i, and 750.411s." Section 750.411h prohibits "stalking," which involves "a willful course of conduct involving repeated or continuing harassment of another individual[.]" Harassment involves "repeated or continuing unconsented contact," but it "does not include constitutionally protected activity or conduct that serves a legitimate purpose." Section 750.411i prohibits "aggravated stalking," which incorporates the same definitions of stalking and harassment that are found in § 750.411h. Section 750.411s prohibits posting a message on the internet or through any medium of communication if "all of the following apply:"

1. The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.
2. Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.
3. Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
4. Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

The latter statute

is designed to prohibit what some legal scholars have referred to as "cyberstalking by proxy" or "cyberharassing by proxy." In other words, … it is not the postings themselves that are harassing to the victim; rather, it is the unconsented contacts arising from the postings that harass the victim. In particular, the statute envisions a scenario in which a stalker posts a message about the victim, without the victim's consent, and as a result of the posting, others initiate unconsented contacts with the victim. These unconsented contacts, arising from the stalker's postings, result in the harassment of the victim. In this manner, by posting a message that leads to unconsented contact, the stalker is able to use other persons to harass the victim.

Like the stalking and harassment provisions, § 750.411s expressly permits "constitutionally protected speech or activity."

A court can issue a PPO without notice to the individual to be enjoined if the petitioner can show that "immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will precipitate adverse action before a personal protection order can be issued." … As a result of the ex parte PPO …, Booth's license to carry a concealed pistol was suspended.

Booth argues that Michigan's nondomestic PPO statute is unconstitutional because it permits a judge to enter an order enjoining protected speech or conduct on an ex parte basis, without an adversarial hearing or adjudication on the merits that the speech or conduct is not protected. According to the Supreme Court,

There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

Carroll v. President & Comm'rs of Princess Anne (1968); accord Procter & Gamble Co. v. Bankers Trust Co. (6th Cir. 1996).

Ex parte orders restraining protected speech or conduct are particularly problematic because, without "evidence and argument offered by both sides," "there is insufficient assurance of the balanced analysis and careful conclusions which are essential in the area of First Amendment adjudication." Furthermore, "[a]n order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order." "The participation of both sides is necessary for this purpose" and "the failure to invite participation of the party seeking to exercise First Amendment rights reduces the possibility of a narrowly drawn order, and substantially imperils the protection which the Amendment seeks to assure." …

Booth had an opportunity to challenge the ex parte PPO after it issued. However, "the denial of a basic procedural right … is not excused by the availability of post-issuance procedure" that, "at best, could have shortened the period" in which Booth was allegedly prevented from exercising his First Amendment rights.

To be sure, as indicated above, the relevant provisions of Michigan's PPO statute all expressly permit constitutionally protected conduct. In addition, the Michigan Court of Appeals has imposed an affirmative obligation on circuit courts to ensure that a PPO will not impact protected speech or conduct. Of particular relevance here is Mich. Comp. Laws § 750.411s, which is the statute cited by the circuit court in Booth's case when enjoining him from posting messages about Fink through the Internet. Before issuing a PPO under that provision, the Michigan Court of Appeals requires a court to find that "a prior posting violates that statute." And if the court finds such a violation, then the court must further "ensure that constitutionally protected speech will not be inhibited by enjoining an individual's online postings." The court can enjoin such postings only "[i]f the court determines that constitutionally protected speech will not be inhibited[.]" …

[T]he statute's exceptions for protected conduct mean that, to some extent, the statute is not to blame if the circuit court's order violated Booth's First Amendment rights. An order restricting protecting conduct is technically prohibited by the statute. Nevertheless, the claim Booth raises here is primarily a procedural one, i.e., whether a court can decide how a PPO would impact protected conduct on an ex parte basis, without the possibility of participation by the person who will be subject to the court's restraints. In … Carroll and Procter, courts indicated that an ex parte process does not adequately protect First Amendment rights. Yet that is the process that the Michigan PPO statute, as well as the Michigan Court of Appeals' decisions interpreting it, appear to permit.

The concerns in Carroll about ex parte proceedings are particularly salient here, where the person who sought the PPO (Fink) appears to have been a government employee attempting to restrict public comment on criminal proceedings against him. Booth plausibly contends that his video recordings and social media posts about these circumstances touched on a matter of public concern. Such speech cuts to the "heart of the First Amendment's protection."

For that reason, the Michigan Court of Appeals instructs that "when it is asserted that [online] postings involve a matter of public concern, the court must consider the content, form, and context of the … postings to determine whether they involve constitutionally protected speech on a matter of public concern." That safeguard is important, but it is unlikely that a person applying for a PPO will be the one to "assert" that the speech at issue involves a matter of public concern, which is why an ex parte proceeding may be inadequate. In Booth's case, for instance, it is possible that the state court was unaware of the full content and context for Booth's speech (including the pending criminal charges against Fink) because Booth did not have an opportunity to present it. And had the court been aware of his perspective and intent, it might have issued a different PPO at the outset rather than modifying it two weeks later….

Carroll does allude to a possible exception for "special, limited circumstances" where the speech "is so interlaced with burgeoning violence that it is not protected by the First Amendment." However, Booth's case does not appear to fit that particular exception. Moreover, the facts of Carroll are instructive. That court overturned a 10-day restraining order that the state court believed was necessary to protect community members from a white supremacist rally consisting of "deliberately derogatory, insulting, and threatening language" that could be construed by listeners as a "provocation" to black minorities and an "incitement to the whites." The restraining order prohibited a white supremacist organization from holding further meetings that would "tend to disturb and endanger the citizens of the County." The defendants argued that this restraint was "justified by the clear and present danger of riot and disorder deliberately generated by petitioners."

The Supreme Court disagreed, finding the state's interests "adequately served by criminal penalties imposed after freedom to speak has been so grossly abused that its immunity is breached." The Court "insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit." If the circumstances in Carroll did not justify an ex parte prior restraint, it is difficult to see the how the circumstances in Booth's case could have justified one….

To be clear, the Court makes no final conclusion about whether the nondomestic PPO statute is unconstitutional as applied to Booth, whether Booth was engaged in protected speech or conduct, whether an ex parte proceeding was improper, or whether Booth suffered any constitutional injury. Instead, the Court finds that [defendant] is not entitled to judgment based on the pleadings alone….