The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Gun Restrictions as Analogy for Justifying Speech Restrictions

"The state may restrict a convicted felon's right ... to possess a firearm," so a state may order a civil case defendant to stop saying things online about plaintiff that "severe[ly] emotional distress" that plaintiff.


I've often heard gun rights supporters object to restrictions on gun ownership by various people (including felons, people subject to domestic restraining orders, and the like) by analogy to speech restrictions: We wouldn't ban a person from public speaking just because he had once been convicted of a crime (assume he's out of prison now, and no longer on probation); why should we do the same as to guns? Conversely, the argument goes, if courts accept the gun restrictions, those restrictions would end up being used as analogy to restrict other rights, too.

I don't think this is an open-and-shut argument; different constitutional rights involve different kinds of risks, and are therefore often treated differently. It may well be that the dangers posed by gun ownership by people with a criminal record (especially a record of violent crime) may justify a ban, but the different dangers posed by speech wouldn't; and there is indeed more of a tradition—though only dating back about a century or less—of restrictions on gun ownership by felons.

Nonetheless, here's one data point in favor of this argument, a case that I had read before but hadn't focused on until now. (I'm finishing up an argument on overbroad injunctions against speech, and I'll be discussing the case in detail.) The case is Best v. Marino, decided 2017 by the New Mexico Court of Appeals (for background, see this Nature news blog post [Helen Shen]):

This appeal arises from a finding of indirect criminal contempt against Respondent Camille Marino for her violation of an order of protection ….

Petitioner [Steven Best] is a philosophy professor at the University of Texas at El Paso (UTEP) and resides in Anthony, New Mexico. Respondent resides in Wildwood, Florida. Petitioner and Respondent became acquainted through their work in the animal rights movement and maintained a platonic friendship for several years until that friendship deteriorated in August 2012.

On October 15, 2012, Petitioner filed a petition requesting protection from acts of domestic abuse perpetrated by Respondent. His petition alleged that Respondent (1) sent threatening email messages, (2) made threatening telephone calls, (3) left threatening voice messages, and (4) posted slanderous and derogatory statements about Petitioner on her website and Facebook page…. [A] special commissioner found that Respondent was a "stalker" and recommended that the district court enter an order of protection. Respondent did not file any objections to the special commissioner's findings or recommendations.

The district court reviewed and adopted the special commissioner's findings and recommendations and entered an Order of Protection … [that, among other things,] restrained Respondent from "committing further acts of abuse or threats of abuse" and "any contact" with Petitioner and defined "abuse" as "… [a] ny incident by one party against the other party … resulting in … severe emotional distress." …

On July 1, 2014, Petitioner filed an affidavit of violation, in which he alleged: "Since the filing of th[e O]rder [of Protection], the Respondent has [often] used social media to harass the Petitioner. She has caused severe emotional distress. The Respondent has used her websites, social media (including [F]acebook, [T]witter, [P]interest), and blogging to carry out revenge styled postings, including numerous damaging pictures of [Petitioner] and making outrageous/false accusations against him. These posts are intended to harm [Petitioner's] career, charitable causes, and personal life…."

[At the district court hearing,] Petitioner introduced twenty-eight exhibits—again consisting of screen captures of Respondent's online activity. Petitioner also introduced three email messages sent directly from Respondent to Petitioner on November 4, 2012 and November 8, 2012. In these exhibits, Respondent referred to Petitioner as (1) "the grand high exalted drug-addicted hypocrite," (2) "a drug-addled imbecile," (3) "a sexist, racist woman beater," and (4) "UTEP junkie professor." One exhibit threatened to "hold [Petitioner] accountable" and to make him "pay dearly." Other exhibits threatened to "expose" and to "neutralize" Petitioner. Still others contained song lyrics with obliquely violent imagery.

Many of the exhibits included photographs of Petitioner snorting prescription drugs (drug photos). Petitioner also testified that: (1) Respondent continued to directly contact Petitioner by telephone and email after the entry of the Order of Protection; (2) Respondent mailed a package containing written materials to Petitioner's home address after the entry of the Order of Protection; and (3) Petitioner's girlfriend received two telephone calls from an unknown individual alleging that the caller was driving through Anthony, New Mexico with the intent to kill Petitioner and his cats.

Inexplicably, the district court did not discuss the possibility that Respondent's direct contact of Petitioner—by telephone, postal service, and email—constituted a violation of the Order of Protection. Instead, it focused its ruling expressly on exhibits related to Respondent's online activity[, which] … it found to violate the Order of Protection…. [The court] sentenced Respondent to 179 days incarceration with credit for time served….

The court upheld the conviction, and rejected Marino's free speech argument:

The state has broad power to limit a person's liberty interests based on that person's prior conduct. Under the most extreme circumstances, the state may incarcerate a person for the remainder of the person's natural life. The state may restrict a convicted felon's right to vote or to possess a firearm.

The rationale underlying such statutes is that the public interest is served by limiting a convicted felon's ability to engage in certain activity—even though that limitation burdens the exercise of the person's inherent rights. See, e.g., Lewis v. United States (1980) (stating that Congress's intent in prohibiting the possession of firearms by felons was directly related to "the problem of firearm abuse by felons"); see also Kane v. City of Albuquerque (N.M. 2015) (holding that "the right to vote is fundamental"); Griego v. Oliver (N.M. 2014) (describing "the right to bear arms, freedom of speech, [and] freedom of the press" as "inherent rights, enjoyed by all New Mexicans"). {Although Respondent was not convicted of "stalking," we conclude that the district court's finding is analogous to a conviction for the purposes of this opinion.}

Orders of protection are essentially justified by the same rationale. The purpose of an order of protection is to prevent future harm to a protected party by a restrained party.  To achieve this result, it is constitutionally permissible to limit a restrained party's ability to engage in certain activity—including the exercise of his or her right to free speech.

The Order of Protection limited Respondent's right to speak and publish freely only inasmuch as it restrained her from (1) directly contacting Petitioner, and (2) causing Petitioner to suffer severe emotional distress. [The court apparently meant here that the order prohibited (1) and separately prohibited (2), since the conviction was based on distressing posts that were not direct contact.] Placing such limitations on Respondent—as the restrained party under the Order of Protection—is not an unconstitutional limitation on her First Amendment rights….

The district court in this case found Respondent to be a "stalker" in October 2012. Respondent did not appeal or otherwise contest this finding prior to the date on which Petitioner filed his affidavit of violation. Because she is a "stalker," Respondent is subject to the restraints imposed by the FVPA and the Order of Protection. Those restraints included valid limitations on her First Amendment rights.

The district court, therefore, was not required to find that Respondent's online activity constituted defamation or harassment or stalking or some otherwise unprotected speech. Instead, it needed only to conclude that Respondent's online activity violated the Order of Protection by causing Petitioner to suffer severe emotional distress….