The Volokh Conspiracy

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

Free Speech

Wash. Court Reverses Order Banning "Defamatory and Harassing" Posts About Judge and Court Employees

It's an unconstitutional prior restraint, the court holds.


From Hedine v. Guerrero, decided today by the Washington Court of Appeals (Chief Judge Rebecca Pennell, joined by Judges Laurel Siddoway and George Fearing):

Alexis Guerrero posted a video on YouTube entitled "THREATENED by a JUDGE!!". The video depicted an encounter at the district court between Mr. Guerrero and Judge Kristian Hedine, Court Administrator Clara Grant, and Probation Officer Ashely Kulberg. Mr. Guerrero had been told he was not authorized to make a video recording at the court and that he needed to leave. He disobeyed this instruction and recorded his interactions with various court officials.

Mr. Guerrero's YouTube post included the following description of the video:

Protesting a $10 parking ticket should never have this result. A judge should know his place and shouldn't cause a disturbance as he did or act beyond his authority as well. The unethical behavior was reported to the Commission of Judicial Conduct, and they found no misconduct or unethical behavior By [sic] judge Hedine. Well I beg to differ and I'm sure I'm not alone in tht [sic] opinion. Let's give them a call and let them know how you feel about the violation of rights that are clear in this video! Title 18 section 242. Deprivation of rights under the color of law!

The video contained the names and work phone numbers of Judge Hedine, Ms. Grant, and Ms. Kulberg. A caption superimposed on the video exhorted viewers to "Flood Calls PLEASE" with Ms. Grant's phone number. Another caption stated that Judge Hedine became a judge "by default."

The video was also posted on a second YouTube channel that was not controlled by Mr. Guerrero. Between the two postings, the video received over 10,000 views. Mr. Guerrero posted a comment on one of the videos, stating in part:

Google how [Judge Hedine] initially got put into the bench and you will clearly see that it was initially by default and he's just taking over for another piece of shit judge. Who clearly had his own issues with sleeping with a married staff.

Mr. Guerrero's comments repeatedly referred to Judge Hedine derogatorily and with profanity.

The videos received numerous comments, including threatening statements aimed at Judge Hedine, court staff, and their families. In the days following the posting of the video, Judge Hedine, Ms. Grant, and Ms. Kulberg all received vitriolic phone calls and e-mails. Some phone calls included threats against Judge Hedine and courthouse staff. As a result of these threats, Judge Hedine was forced to switch the location of his office, and sheriff's deputies were posted outside the district court's facility.

Judge Hedine, Ms. Grant, and Ms. Kulberg all petitioned for civil antiharassment protection orders against Mr. Guerrero. The petitions contained hyperlinks to Mr. Guerrero's video on YouTube. A visiting district court judge presided over the hearing on the petitions. The judge watched the YouTube videos and granted the petitions.

The district court's protection orders restrained Mr. Guerrero from contacting, surveilling, or being within 1,000 feet of the petitioners' homes and workplaces, except to conduct legitimate court business. Mr. Guerrero was also:

[R]estrained from posting any additional defamatory or harassing content on the internet either by himself or through third parties and is directed to immediately remove all defamatory and harassing content which has been previously posted on the internet concerning the Petitioner, specifically threatening and defamatory posts….

Mr. Guerrero's third assignment of error, regarding prior restraint, requires little factual analysis and can therefore be reviewed on the current record. Mr. Guerrero claims the provisions of the restraining orders prohibiting him from prospectively posting defamatory or harassing content on the Internet are invalid prior restraints that violate his constitutional right to free speech. We review this constitutional challenge de novo. In re Marriage of Suggs (Wash. 2004).

A prior restraint is a governmental restriction that bars speech before it occurs. Prior restraints implicate constitutional free speech rights and "carry a heavy presumption of unconstitutionality." Generally, prior restraints are warranted only in exceptional circumstances such as war, obscenity, and incitements to violence. Our case law does not include all instances of unprotected speech in the "exceptional circumstances" category. After all, it is hard to determine in advance whether speech will be protected or unprotected. See id. ("Labeling certain types of speech unprotected' is easy. Determining whether specific instances of speech actually fall within 'unprotected' areas of speech is much more difficult."). Freedom of expression is a core constitutional right. To safeguard this right, it is constitutionally preferable to punish unprotected speech after it occurs, not in advance.

A court order imposing prospective limits on speech—such as an antiharassment restraining order—does not typically raise prior restraint concerns. The exercise of free speech can be regulated by time, place, or manner restrictions so long as those restrictions are narrowly tailored to a compelling governmental purpose…. [But] the orders prohibiting defamatory and harassing speech [are not] valid time, place, or manner restrictions. Nor could they. The orders were not tailored to prohibit Mr. Guerrero from contacting the Respondents directly or through third parties. Because the court's orders did not impose narrow time, place, or manner restrictions, their validity turns on whether they are aimed at the exceptional forms of unprotected speech that are amenable to a priori restraint instead of post hoc punishment.

Our Supreme Court's decision in Suggs casts serious doubt on whether a prior restraint can ever be applied to defamatory speech. To be valid, a prior restraint on defamation requires "certainty" that the court order will restrain defamatory speech, as opposed to speech that is insulting or imprecise. Mere labels do not work in this context. Instead, a prior restraint order must be narrowly worded in a way that does not chill protected speech.

The Respondents claim the court's orders restricting defamatory speech were narrow because each order restrained more than merely speech labeled "defamatory." Instead, Mr. Guerrero was prohibited from posting "additional" defamatory content on the Internet. According to the Respondents, the adjective "additional" specified Mr. Guerrero was prohibited from posting defamatory content that was similar to his prior defamatory content.

We do not find this proffered limitation helpful. The record lacks findings clarifying which of Mr. Guerrero's prior statements were defamatory. One might assume that the statement at issue was Mr. Guerrero's claim that Judge Hedine became a judge by "default." But it is far from clear that this statement qualified as defamation. Defamation requires more than proof of falsity. Furthermore, when defamation is alleged by a public official, the speaker must be shown to have acted with actual malice. We do not find the protection orders sufficiently precise to constitute a valid prior restraint of defamatory speech.

Apart from defamation, the court's orders also restrained Mr. Guerrero from engaging in harassing speech. This provision is even more problematic than the prohibition on defamation. Speech that is merely harassing is not exempt from constitutional protections. As such, the concept of prior restraint is inapplicable in this context.

{Speech that constitutes the crime of harassment is not constitutionally protected. But the crime of harassment requires more than what is typically covered in an antiharassment order. The crime of harassment requires proof of a true threat, involving a serious expression of intent to inflict bodily harm.}

Thanks to Ramsey Ramerman for the pointer.