The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've often blogged about "stop talking about me" orders—injunctions that ban not just speech that falls within a First Amendment exception (such as true threats or libel), or just unwanted speech to a person (such as repeated phone calls, e-mails, and the like), but also ones that ban a wide range of speech about a person (sometimes including all speech or all online speech by the defendant about the plaintiff).
Often these orders stem from bad breakups or other such disputes, but sometimes they relate to social or political debates. (See, e.g., the Moriwaki v. Rynearson case or McCauley v. Phillips.) I think such restrictions blatantly violate the First Amendment , something I argued in my 2013 Northwestern article, and also in probably about a dozen briefs I've filed in various courts.
A couple of weeks ago, I ran across another example, which I thought many readers would find particularly interesting because it bears on the debates about online anonymity. My view is that people have a First Amendment right to speak anonymously online—see, e.g., McIntyre v. Ohio Elections Commission. (When people can use coercive measures, such as subpoenas, to identify an anonymous poster who they say has legally wronged them is a separate matter.) At the same time, others who learn the anonymous speakers' identities also have the First Amendment right to publicize that. It's free speech all around.
But last Fall a Minnesota court took the opposite view, and apparently forbade a man from publicizing the identity of an anonymous Twitter poster whom the man was sharply criticizing, and trying to get her fired from her government job. That, I think, is clearly unconstitutional. And the case is especially interesting because the poster was herself trying to publicly shame some people—sometimes using their pictures and at least once by name—and because the poster is a government lawyer, though I think the order would have been unconstitutional even if these elements had been absent.
The case is Middlecamp v. Fredin, brought by Lindsey Middlecamp, who runs a Twitter feed called @CardsAgstHrsmt; her day job is as a Minneapolis assistant city attorney who has recently been on special assignment as a federal prosecutor. She originally set up the feed to criticize what she saw as street harassment of women, but she also used it for her #ShirtlessShamers2016 campaign: As best I can tell, when she found some men criticizing women online for putting up supposedly too revealing photos, she found and reposted online photos of the same men shirtless. The campaign was noted in Cosmopolitan, Glamour, The Huffington Post, The Independent (UK), Daily Mail (UK), and more. She herself wrote about it in The Daily Beast.
Then in 2017, she posted a different kind of post about Brock Fredin, who had restraining orders issued against him, one of which had been upheld just the day before in a Minnesota Court of Appeals decision (Miller v. Fredin); Middlecamp posted Fredin's picture, with the caption "Women of MN: this is Brock Fredin, aka Dan/Will. He has at least two restraining orders against him. Please RT to help keep women safe." For those interested in what Fredin had done, here is the closing of the Miller decision:
Fredin ultimately argues that his single, so-called "open letter" [to Miller] on his Match.com profile cannot constitute harassment. He urges us to characterize his post instead as just his remorseful reflection about unrequited adoration, because, as he puts it, he was merely "faute de mieux [i.e., for want of a better alternative -EV] . . . shar[ing] his feelings in a personal way, as if in a journal." He caps the argument by quoting substantially from [a] lovesick stanza of Edgar Allan Poe's The Raven, to which he asks us to liken his Match.com post …
Fredin's attempt to analogize his internet post to Poe's celebrated poem ignores the fact that the district court expressly did not base its harassment finding on Fredin's post but rather on the fact that he pursued Miller even after she told him that his continued overtures were unwelcome, harassing, and stalking, and that she would call the police if he persisted. Relying on the poem therefore both oversells on sympathy and understates on conduct. And we offer—purely as dictum—that when one is characterized, rightly or wrongly, as a frighteningly obsessive ex-boyfriend eligible for a harassment restraining order, the typical strategy for a reversal does not include aligning oneself with an allegedly opium-inspired author whose obsession with his deceased lover and other macabre poetry and prose are most commonly narrated for their chilling effect.
Now Middlecamp of course is entitled to try to publicly shame people she thinks are behaving badly. But apparently she had been trying to keep her own identity confidential (though not entirely, see, e.g., this Wisconsin Public Radio item and a now-taken-down 2016 Minnesota National Organization for Women program). When Fredin, upset by her post about him, tried to figure out her identity (apparently by contacting reporters who had written about her), she disapproved of that, and posted about that, among other things condemning him as a "perpetrator who find[s himself] backed into a corner facing public accountability."
Then, a few weeks later, a local newspaper published an article about the restraining orders against Fredin; someone then apparently posted a (now-removed) comment on that article accusing Fredin of having raped the anonymous commenter 7 years before. Middlecamp then Tweeted out that comment, with what appeared to be Middlecamp's endorsement ("[A] rape survivor comes forward. He [i.e., Fredin] remains free.").
Middlecamp continued to condemn Fredin, and apparently Fredin continued to condemn Middlecamp, both by posting about her and by e-mailing various people trying to get her fired and shunned. (He also seems to have been arguing that her "shirtless shaming" posts were criminal revenge porn, though I doubt it, since even the few images that he has identified as supposedly showing "intimate parts" were apparently initially posted by the men themselves, so the men would not have had the statutorily required "reasonable expectation of privacy" about them.)
Middlecamp then sought and got a restraining order against Fredin. (Fredin tried to appeal it, but the court concluded that he wasn't poor enough to qualify for a waiver of the appeal costs, and dismissed the appeal for failure to pay the costs.) The order began by finding that "There are reasonable grounds to believe that [Fredin] has engaged in harassment of [Middlecamp]," and concluded by banning any repetition of such "harassment." It made the following findings:
[a.] Prior to the hearings in this matter, the parties had not met in person. In early January 2016, [Middlecamp], through her anonymous online twitter account @cardsagstharassment posted a tweet linking to a Minnesota Court of Appeals opinion in which [Fredin] was a party.
[b.] After learning of [Middlecamp]'s post about him, [Fredin] began attempting to determine [Middlecamp]'s identity. [Fredin] contacted a Huffington Post journalist who had interviewed [Middlecamp] seeking identifying information about [Middlecamp] which she has attempted to keep anonymous and private. [Fredin]'s email also associated [Middlecamp] with criminal accusations. [I take it this refers to Fredin's accusations that Middlecamp posts of the shirtless pictures constituted revenge porn.-EV] …
[c.] After receiving [Fredin]'s e-mail from the Huffington Post journalist, [Middlecamp] emailed [Fredin] informing him that she considered his behavior harassing. [Middlecamp] expressly requested [Fredin] "cease and desist any contact to [Middlecamp] or indirect contact made to third parties" for the purpose of making unsupported allegations against [Middlecamp] or seeking her personal information….
[d.] Despite [Middlecamp]'s request, [Fredin] registered and authored numerous tweets from the twitter account @mncourtshq, including a tweet directed to [Middlecamp]'s law school describing her as a "likely criminal," tweets directed to other law schools and legal professional associations sharing identifying information about [Middlecamp] and accusing her of criminal conduct, and eventually, tweets directed to an individual associated with her employer accusing [Middlecamp] of professional misconduct….
[e.] [Middlecamp] also presented credible testimony and evidence that [Fredin] registered the domain name lindseymiddlecamp.com and published content to that website sharing identifying information about [Middlecamp] and her employer, accusing her of criminal conduct, and soliciting others to make complaints against [Middlecamp]…. The Court finds [Fredin] to be the author of lindseymiddlecamp.com.
[f.] [Fredin] repeatedly sent emails or other electronic communications to individuals associated with [Middlecamp]'s online activities or employment, each time sharing identifying information about [Middlecamp], her employer, and her anonymous Twitter account, and accusing her of criminal conduct, and soliciting others to make complaints against [Middlecamp]….
[g.] Even after the Order Granting Petition for Ex Parte Harassment Restraining Order was entered against [Fredin] on April 14, 2017, [Fredin] contacted an attorney believed to be adverse to [Middlecamp], who is an attorney, in an active piece of litigation. [Fredin] contacted this attorney to provide that attorney with information about [Middlecamp]. This contact was calculated to reach [Middlecamp] and it did reach [Middlecamp].
[h.] The Court finds that the numerous electronic messages about [Middlecamp] sent to people associated with [Middlecamp]'s professional employment or with her anonymous online account as set forth above are harassment. These messages included identifying details about [Middlecamp], as well as allegations of criminal and professional misconduct. These messages were sent by [Fredin] with the intent to eliminate the privacy [Middlecamp] had maintained between her anonymous twitter account and her full name and employer. [Fredin]'s conduct adversely affects [Middlecamp]'s privacy, safety, and security, and thus constitutes harassment. The Court further finds these communications to have been authored by [Fredin] with the intention of harassing [Middlecamp]….
The harassment has or is intended to have a substantial adverse effect on [Middlecamp]'s safety, security, or privacy.
And it expressly ordered:
[Fredin] shall not harass [Middlecamp] …
Writings or other communications by [Fredin] which are made available for public hearing or viewing and which contain addresses, telephone numbers, photographs or any other form of information by which a reader may contact, identify or locate [Middlecamp] are acts of harassment and are prohibited by this order. Any communications made by [Fredin] under an identity or auspices other than his true name and which refer to [Middlecamp] are acts of harassment and are prohibited regardless of the truth or falsity of any statement made about [Middlecamp].
This means that
- Fredin may not publicly identify Middlecamp as the author of the @CardsAgstHrsmt account: He is barred from "harass[ing]" her, and the court concluded that the various messages Fredin had sent about Middlecamp "with the intent to eliminate the privacy [Middlecamp] had maintained between her anonymous twitter account and her full name and employer" "constitute harassment" because they "adversely affect[ Middlecamp]'s privacy, safety, and security."
- Fredin may not criticize Middlecamp anonymously: "Any communications made by [Fredin] under an identity or auspices other than his true name and which refer to [Middlecamp] are acts of harassment and are prohibited regardless of the truth or falsity of any statement made about [Middlecamp]."
- Fredin may not post Middlecamp's photograph, though Middlecamp had posted Fredin's.
- It is possible—though not completely clear—that Fredin may not even post Middlecamp's full name or the fact that she works for the Minneapolis City Attorney's office, since that would be "information by which a reader may … identify" Middlecamp. Middlecamp's petition for the restraining order expressly asked that Fredin be ordered to "remove postings on social media and websites under Respondent's control publishing my private identifying information (surname and place of employment)" and not to "contact third parties attempting to distribute such information."
Fredin is now suing Middlecamp and various others, based in part on their speech, and many of those claims strike me as pretty weak, and at times as attempts to suppress lawful criticism of him. (His libel claim against Middlecamp, based on what appear to be her endorsement of the rape charges against him, might be viable, though that depends heavily on the facts.)
But whatever his past and present misconduct might be, I think the order here can't be squared with the First Amendment. Identifying an anonymous activist as the author of various publications is constitutionally protected. Criticizing such activists anonymously is constitutionally protected. Posting people's photographs is constitutionally protected.
Indeed, even trying to get people fired based on their speech is constitutionally protected (see Moore v. Hoff (Minn. Ct. App. 2012))—I don't usually care for this practice, but it's pretty common these days, and it's protected by the First Amendment. Again, an order simply barring Fredin from e-mailing Middlecamp, or publishing true threats against her, or perhaps even libeling her, might well have been constitutional. But the order here is not.
And the order also illustrates how broad the Minnesota harassment restraining order statute is. The law defines "harassment" to include, among other things,
repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another, regardless of the relationship between the actor and the intended target.
When such harassment is shown, a court can order the speaker to stop such "harassment," and if the speaker continues to engage in such speech, he could then be jailed. And if trying "to eliminate the privacy [an activist] had maintained between her anonymous twitter account and her full name and employer" counts as something that "adversely affects [the activist]'s privacy, safety, and security, and thus constitutes harassment," then any such speech—including by people very different from Fredin—would be enjoinable.
I recognize that such posts can indeed undermine the activists' "privacy," in the sense of publicizing things about them that they might not want publicized, and that might cause them problems at work and in other places. And I recognize that the posts may even undermine the activists' "safety," because it's always possible that a tiny fraction of the readers of the criticisms will send threats of violence to the activists, or even try to attack them. Apparently this has happened as to FCC Chair Ajit Pai and Rep. John Katko over net neutrality; a few weeks ago a man was sentenced for a death threat against Rep. Maxine Waters prompted by her opposition to President Trump; such threats are sent to many prominent commentators; such threats, and worse, can happen to lower-profile activists as well.
Nonetheless, that can't justify threatening people with criminal punishment for identifying or anonymously criticizing such activists. The leading case on this is NAACP v. Claiborne Hardware (1982), which involved a 1960s boycott of white-owned businesses in Claiborne County, Mississippi; the NAACP and others repeatedly publicized the names of ordinary black residents who declined to go along with the boycott, deliberately trying to pressure them by the threat of ostracism, and some such residents were indeed physically attacked. But the Court held that even civil liability for such speech was preempted by the First Amendment. The same is even more clear as to Minnesota law, at least as the court in this case seems to have read it.
Indeed, while my own post on this would presumably not be covered by the statute, because it is not "repeated," if I put up more than one post that links Middlecamp and @CardsAgstHrsmt (e.g., this post plus any follow-ups that I might post), that could presumably also be "harassment" under the statute. Naturally, that doesn't much worry me, because I know First Amendment law and would be quite capable of challenging any order barring such posts. But under the court's analysis here, speakers who are less able to litigate such a case—again, including ones without Fredin's other history—could easily be silenced.