30K-Follower TikToker Jailed for Violating "Stop Talking About Petitioner" Restraining Order

Washington Post (Rachel Weiner) reports (see also this version, which might be less paywalled):

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.

Comments

[DaivdBehar]

Again, the dumbass lawyer fails to see what is self evident to everyone. It is a harm to be so frightened, one has to move, and one has to send a child to live with another parent. The person who caused such fear should be sued and should be going to prison, not the bartender who may have just told the truth. And now, a dispute over the collateral bar rule.

Fuck off, you stinking lawyers.

[Aktenberg78]

And if the charges against her are upheld, then judges have no incentive to not issue unconstitutional injunctions in the future.

Take a homosexual pervert like David Mangum, linked below. If a judge issued an injunction against him barebacking other dudes, and he violated that injunction, would any liberals be saying that he should still be prosecuted even if a judge later ruled that he had a constitutional rule to bareback other men to completion?

https://www.usatoday.com/story/news/nation/2013/09/05/hiv-missouri-man/2769257/

[Cal Cetín]

So, “Tik Tok don’t stop” is bad legal advice?

[Longtobefree]

And yet another reason to bring back dueling.

[Lee Moore]

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.”

And then can you violate it, while you’re appealing it ?

I’m guessing not. If so we seem to arrive at the peculiar position you can be punished for exercising your constitutional right to speak even when the judge trying to stop you is ultimately proved to be wrong, and even when you have done everything you can, and promptly, to hurry the correction of the judge’s error through the courts.

[jb]

Yes, I was curious about this as well since the case he cited seems to use the lack of appeal as one of the factors in upholding the conviction.

[ragebot]

Just some random thoughts.

First about how social media has changed the law, and in my opinion for the worst. It use to be you maybe told a few peeps about your failure, or success, with the opposite sex but now you can literally broadcast it to the world.

More than once in high school and college some guy would brag about bedding a girl only to be shot down by the guys around him because they knew he was bullshitting.

Now it seems when someone bull shits on social media it is accepted at face value and is reason to sue.

[Rev. Arthur L. Kirkland]

Lousy, lonely, self-absorbed people who dislike accountability for telling lies have rights, too.

[Davy C]

I think a judge should have to choose. They can either have absolute immunity, or be able to invoke the collateral bar rule. But not both. If they’re going to tell someone that they will go to jail for violating an order even if that order was illegal, they should be held personally liable if it is indeed found to be illegal.