The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Crystal Nicole Briscoe, [who goes by Coco Briscoe,] has gathered thousands of followers on TikTok as she chronicles her attempts to find love as a recent D.C.-area transplant. Gradually, she has focused less on the men she's seeing and more on a group of Arlingtonians, including two local bartenders, who she says made demeaning comments about her and shared her personal information in a large group text chat.
The bartenders say Briscoe was the one stoking harassment with inaccurate videos watched by hundreds of thousands of people. People on both sides of the dispute, which largely played out on social media, said it led to anonymous messages that left them frightened.
One of the bartenders has twice gone to Arlington County General District Court and secured restraining orders barring Briscoe from referencing her on social media, saying the TikTok videos spurred a wave of insults online and by phone that led her to flee her apartment and send her son to his father.
A judge dismissed the protective order Wednesday, and two legal experts said such blanket bans on speech violate the U.S. Constitution. Yet Briscoe, who has filed her own police report, could still be guilty of a misdemeanor, in a case that shows how social media disputes can run out of control and into the First Amendment….
Even though the judge dismissed the order against her, Briscoe is still facing a misdemeanor charge for violating it [while it was in effect]. Called to the stand Wednesday, she invoked her right to remain silent, on the advice of her attorney….
The principle that you can usually be prosecuted for violating an injunction even if the injunction is ultimately found to be unconstitutional is called the "collateral bar rule"; it's followed by the federal courts and the courts in most states (though not in California). Virginia does seem to follow the collateral bar rule. Here's an example from a Virginia precedent on the subject, though with regard to a different sort of injunction:
Because Morgan had notice of the DMV order of revocation declaring him an habitual offender, never appealed that order, and operated a motor vehicle on the highways of Virginia during the period of revocation, we hold that the bar of res judicata does not prohibit his conviction.
Likewise, from another case:
The general rule is that where a court has jurisdiction of the parties and the subject matter to pronounce a judgment, such judgment cannot be attacked collaterally even if the statute upon which it is based is later declared to be unconstitutional.
I can't say it's open and shut that this principle would be applied here, since I don't know of Virginia precedents that are specifically focused on injunctions against speech. But I'm inclined to say that a court will probably say "If you wanted to challenge the injunction, you should have appealed it, rather than violating it."
For more on this general subject, see my forthcoming Overbroad Injunctions Against Speech (Especially Libel and Harassment Cases). You can also see one of the orders (which orders Briscoe "not to discuss petitioner on social media") here.