The Volokh Conspiracy

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Injunction Against "Harassing" Online Speech Struck Down on First Amendment Grounds

"We cannot adopt the trial court's preference to treat a [personal protection order], which in this case is a prior restraint on ... speech, as a means 'to help supplement the rules that we all live in society by.' The First Amendment ... demands that we not treat such speech-based injunctions so lightly."


From TM v. MZ, a published Michigan Court of Appeals opinion that is dated Tuesday but that was just released to the parties this morning:

Petitioner TM and respondent MZ are neighbors in Cottrellville Township, Michigan. Respondent is a former trustee of Cottrellville Township and petitioner also has had some involvement in local politics, presently as a member of the Township Parks and Recreation Board. She also has participated in successful recalls of respondent and the supervisor of Cottrellville Township.

TM and MZ had "an acrimonious past," which culminated in MZ's posting various "negative comments about petitioner on Facebook, and through private messages" to third parties, including (in the words of TM's petition),

  • July 6, 2015: [Respondent] made several comments on a post in the St. Clair County, Michigan page on Facebook, including but not limited to; calling me a criminal, accusing me of hiding criminals, having illegal trailers on my property, posting pictures of my yard, [stating] that I meet the requirements of "hurting someone" and that I'm a criminal.
  • July 6, 2015: [Respondent] sent a private Facebook message to multiple people, with regards to the above mentioned comments made on the St. Clair County, Michigan page, saying that I am criminal, I hide criminals, and saying things about the death of my son, which were not only derogatory and disgusting, but were complete lies, and how it was because of my parenting. These comments were in addition to other things.
  • May 4, 2015: [Respondent] posted on his Facebook page a picture of a car and a letter with a heading of "Attempted abduction in St. Clair Count [sic], Please share this Info!" Respondent then commented on the post that if there were any questions about the vehicle to join the St. Clair County, Michigan Facebook group. [Respondent] also commented on this post that the driver of the vehicle "was involved in a form of attempted abduction of a child" and further down [respondent] commented "I actually saw a similar vehicle at [TM's address], where it was there only a couple of minutes." This is my address. [Respondent] also made a comment on the post about the car on the St. Clair County, Michigan Facebook page wherein he stated "a vehicle just like that was at [petitioner's address] today … It watched my home, and then pulled into [petitioners's address]- an address notorious for everything from crime to severe ordinance violations that never go away. It was only there for a few minutes."
  • April 22, 2015: [Respondent] made a comment on a post about a stolen bbq to "Go look at [petitioner's address]… It is a virtual junk yard of items picked up from the garbage of other[s]".
  • September 7, 2014: [Respondent] commented on a post in the St. Clair County, Michigan Facebook page about motorcycles stolen out of Auburn Hills, "… my neighbor is at [petitioner's address]… I saw them burning parts and burying them illegally in the ground before. I will be on the lookout for you."
  • August 10, 2014: [Respondent] wrote a post on the Facebook Cottrellville Township, Michigan page that included stating we had a "junkyard" and "two illegal commercial trailers". [Respondent] then made a comment on his post stating "… Bob confirmed there is [sic] severe blight and health violations at [petitioner's address]… " Respondent later puts a comment on his post with a Court Case [identification] number to look me up in the court docket. Respondent later comments on his post that I was taken to court and at one time had 12 vehicles in my front yard.
  • June 2, 2014: [Respondent] commented on a post on the St. Clair County, Michigan Facebook page saying that my yard is used as an "illegal junkyard" and posts the link to a video.
  • July 24, 2014: [Respondent] sent a message to a private citizen making derogatory comments including that "that family is into drugs."

Also, in the court's words, "in a Facebook message to an undisclosed recipient on July 6, 2015, respondent shared his comments and opinions on petitioner's parenting abilities, specifically accusing petitioner of allowing her children to partake of illegal drugs, and also discussed the alleged circumstances of her son's death."

TM petitioned for a personal protection order against MZ, and the trial court agreed; the order barred MZ from "stalking as defined under MCL 750.411h and MCL 750.411i," and from "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s[.]," which likely meant that MZ couldn't say further things like the ones he had posted. (I set aside here the separate question whether the order was unconstitutionally vague.)

The court of appeals held the order was unconstitutional:

We do not disagree with the petitioner or the trial court that respondent's statements often were inappropriate, at times crude, and even sometimes, with respect to the death of petitioner's son, offensive. Inappropriate, crude, and offensive language, however, is not necessarily excepted from constitutional protection.

Thus, we cannot adopt the trial court's preference to treat a PPO, which in this case is a prior restraint on respondent's speech, as a means "to help supplement the rules that we all live in society by." The First Amendment to the United States Constitution demands that we not treat such speech-based injunctions so lightly.

The court first held that the speech could be enjoined if it fit within one of the First Amendment exceptions, and concluded that MZ's speech did not so fit:

In this case, petitioner sought a PPO pursuant to MCL 600.2950a, which allows for "an independent action to obtain … a [PPO] to restrain or enjoin an individual from engaging in conduct that is prohibited under … MCL 750.411h, 750.44li, and 750.411s." In order to warrant a PPO pursuant to MCL 600.2950a, the petition must "allege[] facts that constitute stalking as defined in section 411h or 411i, or conduct that is prohibited under section 411s, of the Michigan penal code …. " …

Conduct prohibited by MCL 750.411s includes posting "a message through the use of any medium of communication … without the victim's consent, if … [t]he 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," and, by posting the message, the person "intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested." The statute also requires proof that conduct arising from posting the message would cause a reasonable person, and did cause the victim, to "suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested."

However, MCL 750.411s "does not prohibit constitutionally protected speech or activity." Therefore, in order to warrant a PPO pursuant to MCL 600.2950a(l), the trial court had to find that respondent's postings—his speech—were not constitutionally protected….

[T]he "right to speak freely is not absolute." … Prohibitions relating to content, however, are few, due to the First Amendment's "bedrock principle" that an idea cannot be prohibited "simply because society finds the idea itself offensive or disagreeable." "The First Amendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Thus, the First Amendment does not protect obscenity or defamation, within certain limits. "A State may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace," including "fighting words," "inciting or producing imminent lawless action," and "true threat[s]." …

Respondent's Facebook posts and messages, quite clearly, were not "fighting words," did not "incit[e] or produc[e] imminent lawless action," and were not "true threat[s]." Id. Fighting words include" 'those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction ….'" There is nothing in the record to support, when respondent made any of the foregoing statements, he did so in a situation where it was "inherently likely to provoke violent reaction," considering he made the statements on the internet, in a public forum, far removed from any potential violence.

A "true threat," meanwhile, "encompass[es] those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." While respondent's posts were undoubtedly in poor taste and offensive, they did not reach the level of intending the commission of an unlawful act of violence.

Further, respondent's statements did not "incit[e] or produc[e] imminent lawless action …." The closest that respondent's speech came to that standard was his assertion that someone should "[g]o look at" petitioner's address in search of a stolen grill. That statement was not likely to incite illegal activities, because "looking at" an individual's house, yard, or property, is not illegal. Had respondent urged the individual to break in petitioner's house or to otherwise trespass on her property, there would be a legitimate question regarding whether his speech was protected. As the record stands, there was no such suggestion by respondent..

The trial court noted that respondent's statements regarding petitioner's alleged illegal activities, the most serious of which was involvement in a kidnapping, likely would have produced unconsented contact from the community. Regardless of the veracity of that assertion by the trial court, the United States Supreme Court has determined in similar cases that respondent's speech still was protected. See Org for a Better Austin v Keefe, (1971) (holding that First Amendment protection applied to the distribution of leaflets even where those leaflets accused an individual of racism, provided personal information about the person including his telephone number, and urged the recipients of the leaflets to contact him); see also NAACP v Claiborne Hardware Co. (1982) (holding that "[s]peech does not lose its protected character," even where the speech involved publicly listing the names of individuals that did not participate in a boycott, which undoubtedly was meant to lead to unconsented contact with those individuals, so as to "persuade [them] to join the boycott through social pressure and the 'threat' of social ostracism.").

At its very base, the exception to the First Amendment for incitement of imminent lawless action requires that the incitement be for actually illegal actions, not just inconvenient or aggravating ones. "There is no categorical 'harassment exception' to the First Amendment's free speech clause." Saxe v State College Area Sch Dist. (3d Cir. 2001) (opinion by Alito, J.). Here, the record does not support that respondent's statements were intended to incite imminent lawless action.

Now some of the speech might have been defamatory, but the court made clear that "anti-harassment" or "anti-stalking" restraining orders can't be used as an end run around the various rules that limit defamation claims:

Considering that these exceptions to constitutionally protected speech do not apply in the instant case, the only remaining prohibiting category that might be applicable is that the speech was defamatory…. A defamatory statement, by its very definition, is one that is false. Edwards v Detroit News, Inc, 322 Mich App l, 12; 910 NW2d 394 (2017). "To be considered defamatory, statements must assert facts that are 'provable as false.'"

Here, the trial court never made a determination whether the accusations made by respondent were false. When respondent stated that he could offer proof that his statements were true, the trial court refused to consider the evidence or to hold an evidentiary hearing.

The trial court reasoned that an inquiry regarding falsity was unnecessary because, in the court's own words, "I don't believe because of [petitioner's] status that truth is an absolute defense to this. and so I'm going to deny your request for an evidentiary hearing because I don't think there's any need to do that." The trial court also stated, when discussing respondent's accusation that petitioner had assisted in a kidnapping, "whether or not that actually happened, I don't think that's the standard."

The trial court was incorrect. "Truth is an absolute defense to a defamation claim." The rule applies even where the person who allegedly has been defamed is a private citizen and the alleged defamer is not a member of the media. Thus, in order for respondent's statements to have been considered defamatory they must have been determined to be false, and the trial court, detem1ining that such an inquiry was unnecessary, refused to accept evidence on the issue or to even make the determination. Consequently, we have not been provided with a record that would allow for us to make a determination whether respondent's statements were defamatory.

The court also noted, but held that it need not resolve, the possibility that under the Michigan Constitution PPOs, which are issued without jury findings, can't be used to restrict even speech that the judge does find to be false and defamatory:

Because the trial court failed to make the inquiry into falsity, the PPO must be vacated. Therefore, it would be unnecessary to consider whether, pursuant to Mich. Const. 1963, art 1, § 19, the trial court is permitted to make such a determination. That constitutional provision provides that "[i]n all prosecutions for libels the truth may be given in evidence to the jury …." This Court and the Michigan Supreme Court previously have indicated that Const. 1963, art I, § 19, could apply in civil cases. Whether the constitutional provision at issue would apply in a PPO case is a determination for another day.

The court summarized:

[The relevant] statute "does not prohibit constitutionally protected speech or activity." … Constitutionally protected speech includes all speech, but for that speech that falls into certain categories, including defamation, fighting words, inciting imminent lawless action, and true threats.

Respondent's speech did not amount to fighting words, inciting lawless action, or true threats. It was not enough to show that respondent's words amounted to harassment or obnoxiousness. Therefore, the only possible category remaining to the trial court that would not be considered constitutionally protected speech was defamation. The trial court's failure to assess whether respondent's statements were true or false, or to accept evidence on the issue, renders review of that issue impossible….. Absent a violation of MCL 750.411s, there were no grounds on which to enter the PPO….

And the court added that the PPO was also "an unconstitutional prior restraint": Whether or not injunctions against defamation are ever allowed, any such injunction would

first require[] a determination by a factfinder that the statements were definitively false, and then specifically limit[] any injunction to the adjudicated speech. As discussed [above], the trial court failed to make such a determination in this case. Therefore, regardless of whether the modem trend [in favor of allowing some injunctions against defamation] or the rule announced in [a 1966 case, rejecting such injunctions], is adopted, the issuance of the PPO here, because of the trial court's failure to determine that the speech actually was false, fails to overcome the "heavy presumption against its constitutional validity."

Sounds exactly right to me. I should note that, with the invaluable help of local counsel Michael F. Smith, my Scott & Cyan Banister First Amendment Clinic student Ryan Vanderlip and I filed an amicus brief—on behalf of the Pennsylvania Center for the First Amendment and Prof. Aaron H. Caplan—supporting this result. Congratulations also to MZ's lawyer, Philip L. Ellison, who has litigated this case from trial to appeal to the Michigan Supreme Court (on a procedural question related to mootness, on which he won) and now back to the Court of Appeals; and thanks to Deborah David, John Weston, Dale Cohen, and Patrick Goodman for their help mooting me for the oral argument.