The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tom Owens is running for the County Commission of DeKalb County (a large county in the Atlanta metropolitan area). George Chidi, a former Atlanta Journal-Constitution writer and now a city councilman in a small Atlanta-area town, wrote a sharply critical story about Owens. The same day, Owens got a Stalking Ex Parte Temporary Protection Order against Chidi.
The order, among other things, bars Chidi "from approaching within 100 yards" of Owens and from having "contact of any type, direct or indirect, or through another person, with [Owens]." Chidi is also barred from "follow[ing]" Owens or "plac[ing Owens] under surveillance." The hearing on whether to vacate or extend the order will be Oct. 22, so the temporary order will in any event take up much of the rest of the election campaign; the election is Nov. 4, and early voting begins Oct. 13.
This strikes me as very troubling, since it interferes with the ability of Chidi – a political commentator, blogger, and journalist – to cover a candidate for public office. Often, restrictions on deliberately being near a person, or on deliberately contacting a person, will only modestly affect the restricted person's ability to speak to willing listeners. But when that person is a political figure, that means the journalist can't go to the person's political speeches, can't ask questions at such speeches, can't get confirmation or denial on the stories he's writing, and so on. Indeed, the order would even bar Chidi from asking Owens questions through Owens' campaign manager or similar assistant (paid or volunteer).
Now I take it that Owens' claim must be that Chidi had deliberately engaged in
a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person's safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.
The theory must be that something Chidi said or did physically threatened Owens. But the petition itself gives no supporting details, other than saying that something happened at "Andrews Church" in Tucker on Sept. 18, 2014, and at the "Swim & Tennis Club" in Dunwoody on Oct. 5, 2014. And since this was an ex parte temporary restraining order, Chidi wasn't present at the hearing. The only impartial news report I've seen about the incidents was this one in the Dunwoody Crier:
[After a candidate forum,] Owens and a friend, Joe Newton of Gwinnett County, got into a shouting match with George Chidi, a blogger for Peach Pundit.
Chidi has published a blog post investigation of Owens' background, discovering stalking charges, restraining orders, harassment of candidates and a lingering feud with the imam of a mosque behind his home. Owens didn't appear to like it.
Whatever the proper scope of stalking harassment orders might be in normal cases, this one seems highly inapt in this case. If there is a serious charge that a political writer who is writing stories about a candidate also said or did something physically threatening the candidate, a restraining order might be proper. But at the very least the critic should be present to defend himself, either at the initial hearing or within hours or a few days at most.
Restricting such a political writer for two weeks in the immediate run-up to the election can't be a constitutionally permissible burden. As State v. Drahota (2010) makes clear, even when restrictions on unwanted speech to a person are generally constitutional, restrictions on such speech to candidates for office may not be. (See also the cases cited at pp. 21-23 of this brief.)
For those who think this rings a bell, yes, the statute is the one involved in Chan v. Ellis, in which I filed an amicus brief (and in which I argued as an amicus this past Tuesday). But the legal issues in the two cases are somewhat different, because Chan involved an even broader speech restriction.