The Volokh Conspiracy

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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….

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  1. Where are the disparate impact people on this issue? Surely felon gun restrictions impact minorities disproportionately and is therefore racist and unconstitutional.

    1. Don't forget penumbras.

      1. Smell my emanations.

    2. Don't laugh; years ago (I think in the 1970s or so, from the 8th Circuit) there was a court ruling that an employer's ban on hiring felons could be employment discrimination since minorities are disproportionately convicted of felonies. There's been a lot of law since then greatly reducing the ability to make disparate impact arguments so I'm not sure that decision is still good law.

      The case involved someone with a drug conviction who had applied for a job as a janitor. What the court said is that you have to take into account whether there is a valid connection between the specific crime and the specific position applied for; it's legitimate to not hire a convicted forger to be a bank manager, or a convicted child rapist to work at a school. And I think the CofA sent it back to the trial court for a hearing on whether there was enough of a connection between a janitor's position and a drug conviction to justify rejecting the applicant on that basis.

      1. It's absolutely still good law that an employer's ban on hiring felons can trigger disparate impact liability. It depends on the facts — some employers may be able to justify it on business necessity grounds — but I would (and do!) advise any employer to think very carefully before implementing such a policy. Note that this does not mean that an employer can't refuse to hire someone because he or she is a convicted felon; it just means that they can't have a blanket policy against it.

        (And of course more and more states are implementing ban-the-box legislation to forbid employers from even asking the question of job applicants.)

  2. I don't see the parallel. The speech restrictions are against harassing a specific individual. Not against speech in general.

    1. "Not against speech in general."

      tried to support trump on twitter lately?

      1. Social media is not the government, and is therefore not constrained by the First Amendment.

        1. The entire citizenry is constrained by the constitution. It says so.

          1. You are incorrect. Orders of magnitude incorrect.

          2. Longtobefree: Says so where?

            1. "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

    2. Speaking to the general world about someone is not harassment. If the subject is upset that the person is talking about him, tough luck. He doesn't have the right not to be talked about.

  3. I suspect the asset forfeiture theft is a better warning against 'common sense speech control' than the blatant infringements on the second amendment.
    If they can take your stuff without even a criminal charge, let alone a conviction, there is no restriction at all in law anymore. And the cops get to keep the stuff they steal, they don't have to turn it over to a court or anything.

  4. I'm fine with violent felons not owning guns, but I think prohibiting all felons from owning guns goes too far. I don't see the logic in telling someone with a conviction for embezzlement or some other white collar crime that he can't take his son hunting.

    1. I tend to agree, but I'll make the counterargument:

      In general, Ed the embezzler and Mike the mugger share a couple of personality traits:
      1)They aren't averse to victimizing others, and
      2)They aren't averse to ignoring laws they happen to disagree with
      3)They may be less concerned about future consequences for current acts

      So imagine Ed, Mike, and Larry the law abiding when faced with something that would anger anyone - perhaps looking out the window and seeing someone boosting their car radio. Larry is going to be angry, like most people would be, but he may be more likely to think 1)even though I'm angry at that guy, I don't want to shoot him for stealing a radio, 2)even if I was, the law doesn't allow shooting him under these circumstances, and 3)if I do give in to my angry impulse, I'll go to jail, and I don't want that.

      So I think there is some predictive value even for non-violent crimes. I do think, though, that Ed may be less likely to misuse a gun than Bob the brawler, who loses his temper and gets in bar fights every Saturday night, even if his convictions for that are all misdemeanors.

      Perhaps the best approach is to not be formulaic about it, but to consider the totality of circumstances. Did Ed embezzle millions over years, or $50 once? Does Dave the Drinker have multiple DUIs with a BAC of .2, or only one after his father's wake with a BAC of 0.09? Was the crime last month or three decades ago? Etc, etc.

      1. All three of those seem to have implications well beyond gun ownership, though.

        My own view is that, with very few and laser sharp relevancy exceptions, once somebody has completed their sentence they should be restored ALL of their civil liberties. Without exception.

        We do not need millions of second class citizens walking around. Or worse, as the left would like, second class citizens who can vote.

        1. "We do not need millions of second class citizens walking around. Or worse, as the left would like, second class citizens who can vote."

          Exactly. A black person with a gun is much less dangerous than a black person in the voting booth.

          1. This, but unironically, and removing the word "black". Voting is by far our most dangerous right.

      2. But the embezzler has, at least up until this point, shown an unwillingness to directly use violence himself to get what he wants, and that’s a fairly crucial distinction. To the extent that past behavior is predictive of future behavior, the embezzler has done nothing to indicate that he’s at risk of being violent. Yes, he has character and ethics issues, but violence does not appear to be among them.

        I’m far from being a Second Amendment absolutist but I do think restrictions need to have an actual connection to actually reducing violence.

        1. I think "actual connection to actually reducing violence" doesn't really cut it.

          Take speech. You could probably come up with all sorts of hypothetical restrictions on speech with connections to reducing violence. But the general rule is that you can't restrict speech for that reason without a very direct connection. Just that particular speech might raise the level of violence in society wouldn't get you anywhere, you'd have to connect the speech directly to a specific act of violence.

          I think it's got to be the same with guns. You can't ban a particular model of printer because it makes things convenient for counterfeiters. You'd have to demonstrate that it literally had no other use. And color printers have anti-counterfeiting features, such as generating virtually invisible watermarks that identify the specific printer and when it was used. But they're not legally mandatory.

          Similarly, the mere fact that a gun might be convenient for criminals, (Due to features that also make it convenient for non-criminals!) wouldn't get you anywhere, were the 2nd amendment taken as seriously as the 1st. And these various proposals to add taggants to propellants, or require that guns produce identifying marks on bullets and cases would be non-starters, too.

      3. They aren’t averse to ignoring laws they happen to disagree with
        drivers everywhere

  5. Professor Volokh...Wasn't the judge in that case removed from the bench by the New Mexico Supreme Court?

    1. Very interesting, thanks! I Googled, and saw that he did indeed resign in lieu of further disciplinary proceedings, and was permanently barred by the N.M. Supreme Court from any future judicial office in the state.

      1. Separately, I also appreciated your use of slides during your part in the religious liberty seminar on Monday. No other speaker did that.

  6. Every rule someone makes up eventually gets used to justify the next rule. That’s one of the many reasons to oppose all the rules on general principle and only grant exceptions when it's critically necessary.

  7. It is generally accepted by 2nd Amendment activists that those who are weak on the 2nd are quite often weak on the 1st also. It usually only takes a few posts on the subject of gun control before a person who favors it comes up with the "you can't shout fire in a crowded theater" argument.

  8. Except that the 2A right is a discrete fact (you can carry a weapon), and 1A is an illiquid list of principles (among others, freedom of speech).

    So the better analogy, if the judge wants to reduce enumerated rights to the balancing of intuitive (and empirical) equity, might be: The state can keep you from carrying a gun, and the state can keep you from... posting things on the Internet, apparently.

    Mr. D.

  9. Seems like the order should be enforceably vague. The person subject to the order has no control over whether their conduct causes emotional distress.

    Especially given that the petitioner is a philosophy professor.

  10. Only jews believe in hate speech, a violation of 1A. Only jews want to disarm the American people, violation of 2A. The analogy is pointless as it is jewish. Perhaps all the jews can go live happily in Israel with no guns and belief in the holohoax.....the agenda is not American, it is jewish.

    1. Nah. I've known some stupid Gentiles who were anti-2nd Amendment. For the record, I'm a Gentile.

  11. Anybody so dangerous they can't be trusted with a gun shouldn't be walking free, period. Ex-convicts have no lesser right to self defense than any other man.

  12. Interesting that a New Mexico court had jurisdiction over someone in Florida. Not all courts have so held. See Huggins v. Boyd, 304 Ga. App. 563 for a contrary view.

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