The Volokh Conspiracy
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Overbroad Speech Restriction in Dispute Between Two #AppleToo Whistleblowers Overturned
N.Y. Post (Theo Wayt) wrote in April about the underlying dispute:
A pair of ex-Apple employees who made headlines last year for leading a whistleblower movement against the company have since become embroiled in a bizarre legal fight, accusing each other of harassment and stalking.
Cher Scarlett and Ashley Gjøvik co-founded a whistleblower campaign called #AppleToo that last summer and fall published dramatic stories of gender and racial discrimination, sexual harassment and other ills from employees of the famously secretive tech giant….
But behind the scenes and eventually in public, Scarlett and Gjøvik had a falling-out involving claims of stalking, leaking confidential information and even secretly working on behalf of Apple. The dispute culminated in Gjøvik labeling Scarlett an "evil witch" and Scarlett receiving a restraining order against Gjøvik, court papers show.
The restraining order not only required Gjovik to stay away from Scarlett and not to surveil or communicate with Scarlett, but also provided:
[Gjovik] shall not make any statements or posts or other publications about [Scarlett], including, but not limited to, [Scarlett]'s medical information, [Scarlett]'s family, [Scarlett]'s names, on any social media or internet or other medium. Nothing about this Order prohibits [Gjovik] from testifying in administrative or judicial proceedings.
Now here's today's decision, Scarlett v. Gjovik, decided by King County (Wash.) Superior Court Judge Andrea Robertson:
[Scarlett] filed a request for [a harassment restraining] order, describing [Gjovik]'s pattern of "posting defamatory content and other false statements about me on her Twitter account." [Scarlett] also speculated about posts made by anonymous accounts, which [Scarlett] attributed to [Gjovik]. Specifically, [Scarlett] wrote and testified in court about [Gjovik] "re-posting" items posted on [Scarlett]'s own social media platform starting in December 2021. [Scarlett] admitted to having published these facts to her own followers, which exceeded 55,000…. [Scarlett] claimed that [Gjovik] posted information related to a background check of [Scarlett]'s spouse. [Scarlett] also claimed that [Gjovik] expressed opinions about [Scarlett]'s truthfulness in her public posts and her involvement in ongoing litigation with Apple, Inc….
[T]he lower court granted the order …. In doing so, the court found that the "course of conduct" by [Gjovik] involved primarily the "re-posting" of various items. The court expressed its greatest concern about posts related to records of criminal history as well as details about [Scarlett]'s health.
The court ultimately asks a key question of the [Scarlett]: "I'm sorry; so are you saying that the information about your medical—various medical conditions, your mother's whereabouts and those sorts of things that she's reposting things that you have already posted on Twitter?"
[Scarlett] confirmed that this was true, explaining to the court that [Gjovik] had re-posted items that [Scarlett] intended only for her "own" Twitter followers (approximately 55,000+), and/or were items that [Gjovik] found through other sources, commenting that "she actually did delete a lot of the Tweets that had personal information about it except for two of them." [Scarlett] then adds that [Gjovik] conducted a background check on both herself and her husband and provided this information to a representative for Wikipedia.
The Superior Court noted that the lower court concluded that "[w]hether it's true or not doesn't matter in an antiharassment order," but rather that the question was simply "whether there's a pattern of activity over time directed at Ms. Scarlett that serves no lawful purpose." The lower court went on to say:
The only purpose in posting information about Ms. Scarlett's mother, Ms. Scarlett's mother's whereabouts, home and pet, Ms. Scarlett's husband and his criminal record is clearly designed to upset Ms. Scarlett. There's no lawful purpose. There is no absolute right to free speech. Free speech can be curtailed in many ways, one of which is a protection order. The protection orders are clear that the course of conduct cannot be designed to alarm, annoy or harass. There's no other purpose for posting these things, none.
The antiharassment statute does not require that Ms. Gjovik direct this specifically by directly speaking to her, it's designed—it prohibits directing this at her. So it can be directed at other people knowing that Ms. Scarlett is going to see it and be aware of it. It can be communicated to others. It doesn't have to be communicated directly to Ms. Scarlett to be prohibited under our antiharassment statute.
Posting this kind of information about somebody's medical condition, about someone's spouse's criminal history—particularly when it's sealed, but even if it weren't sealed—about someone's parents, about someone's name change, none of that serves any lawful purpose to disseminate. The only purpose for doing that is to harass, annoy and alarm. Clearly, Ms. Gjovik has more than a bit of animosity toward Ms. Scarlett. Clearly, she was directing this at her and was hoping to harm her, to upset her. There's no other purpose for this. I am going to issue the order ….
But the Superior Court disagreed. It noted, discussing the lower court's analysis:
- The reference to "medical conditions" referred to a reposting of [Scarlett]'s own Tweets about her own medical conditions. {Tweets and messages from [Scarlett] were apparently public at one point but were later restricted in audience reach to approximately 55,000 persons who were followers of [Scarlett]. It is unclear from the record when some items were "public" tweets, versus "limited audience" tweets.}
- The reference to [Scarlett]'s family was related to [Gjovik]'s post opining about the strength of [Scarlett]'s claims about her poverty in childhood in light of a posted photo. (Despite the reference to "location" this court sees no evidence that [Scarlett]'s private home address was posted, and the reference to "home" appears from the record to be a comment about [Scarlett]'s publicly posted childhood photo.)
- The reference to criminal history was related to law enforcement or court documents obtained by [Gjovik] showing that [Gjovik]'s spouse [in context, this must be an erroneous reference by the court to Scarlett's spouse -EV] had a prior criminal conviction and was ordered to register as a sex offender. {It was unclear from the record, but at some point either shortly before or shortly after [Gjovik] posted this information, King County Superior Court sealed the juvenile record for [Scarlett]'s spouse (in late December), a detail apparently unknown to [Gjovik] when [Gjovik] posted this background information, according to sworn testimony.}
And the Superior Court concluded that the order violated the First Amendment, as well as the Washington harassment order statute, which excludes "constitutionally protected free speech." In particular, it reasoned:
Appellant/[Gjovik]'s "Republishing" or "Re-posting" Publicly Available Records
While the publication of truthful information is not protected in all instances, the U.S. Supreme Court has shown how even the publication of a rape victim's name from a publicly-released police report is protected by the 1st Amendment. The Washington Constitution provides even greater protection than the U.S. Constitution's 1st Amendment to the publication of public records. Via Const. art I, § 5, Washington provides an absolute right to publish and broadcast accurate, lawfully obtained information that is a matter of public record….
While there is a compelling state interest in protecting citizens from harassment, a specific protection order must be narrowly tailored to further a compelling state interest. In a very similar case to the matter before this court[, Catlett v. Teel (Wash. App. 2020)], Division One recently determined that restrictions such as the ones imposed by the lower court (related to online posts) were not narrowly tailored to further a compelling state interest.
The lower court in this matter seemed to require a "lawful purpose" behind the [Gjovik]'s postings of public records. But our state constitution does not allow for that consideration or restriction on free speech, and provides that "[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." There is no categorical "harassment exception to the First Amendment's free speech clause."
While many of the postings by [Gjovik] which were complained of appeared to be offensive, rude, or harsh, the case law is clear: Civil antiharassment statute is not designed to penalize people who are overbearing, obnoxious, or rude.
The lower court's determination should have exempted from a finding of "course of conduct" the "re-posting" of publicly available records, content and statements, as the actions constituted constitutionally protected free speech.
Further, the lower court's order for protection restricts future speech in a manner which constitutes an unconstitutional content-based restriction. The court cannot restrict expression because of its message, its ideas, its subject matter, or its content, unless it is narrowly tailored to promote a compelling governmental interest. Here, there is no privacy interest in public records and public postings. Re-posting of these public records falls within constitutionally protected activity. No applicable exceptions apply to allow a prior restraint on speech (e.g.. incitement to violence, publication of obscenity, direct threat to military security, restrictions during times of war)….
Appellant/[Gjovik]'s "Opinion" Posts
A slightly different analysis applies to posts featuring the opinions of [Gjovik] about the strength and veracity of various legal claims made by [Scarlett], as well as opinions about [Scarlett]'s involvement as a witness for Apple, Inc. It is important to note that these posts were featured on [Gjovik]'s own blog/site/social media pages, and were not directed to [Scarlett]. The lower court appeared to have heard and seen no evidence that the posts encouraged or incited violence. [Scarlett] asserts that the speculation and opinions expressed by [Gjovik] about [Scarlett]'s involvement in litigation were false and reckless. Thus, this Court will address this specific category of online posting via a separate test of whether this constitutes defamation, which may not be protected by the First Amendment.
A defamation plaintiff must establish four essential elements to recover: (1) falsity; (2) an unprivileged communication; (3) fault; and (4) damages. The truth or falsity of the "opinions" was not explored in the court below. However, a great deal of evidence was before the court regarding the limited public figure status of [Scarlett]. This status is important as there is a clear decrease in the protections against invasions of privacy and defamation of character provided by law, if someone is a "public figure" for a "limited range of issues." This applies when a party "voluntarily injects [them]self or is drawn into a particular public controversy."
Page 155 of the 222 page lower court record includes a post of a "businessinsider.com" article, featuring [Scarlett], who provided public interviews and engaged in ongoing activism related to Apple Inc., after alleging harassment in what is described as a whistleblower filing. [Scarlett] herself described in her own sworn testimony that she utilized her public followers to heighten awareness and engage in public activism, designed to reach a wide audience. In fact, [Scarlett] described using her public presence to initially increase [Gjovik]'s public reach, as they both were involved in activism and litigation, well before the alleged defamation…. [Scarlett] is and was a limited public figure as it related to ongoing employment issues at Apple, Inc. As such, [Scarlett] must prove that [Gjovik] had actual malice in making posts which were not truthful, before it would meet the legal definition of "defamation," which could then exempt that content from free speech protections.
However, there was no evidence of actual malice before the lower court behind [Gjovik]'s posts. There was more than sufficient evidence of [Gjovik]'s intentions and aim in addressing or magnifying or responding to an ongoing dispute and legal challenge. [Gjovik]'s expression of opinion in that context was not proved to be motivated by malice, but rather by activism.
Even if [Gjovik]'s speculation as to [Scarlett]'s role as a witness or agent of Apple, Inc was not entirely accurate, [Scarlett] did not show sufficient basis for this to be qualified as "defamatory" content. As such, there is no proof that the "opinion" posts of [Gjovik] could be exempted from free speech protections. And thus, those posts cannot provide an alternate means to support a finding of "course of conduct" to justify the lower court's restrictions on speech.
Overall, the [Gjovik]'s "re-posting" of public records and the "opinion" posts constituted free speech which must be protected …. Accordingly, the lower court's ruling amounted to an unconstitutional prior restraint on [Gjovik]'s speech….
This seems to me to be generally correct, for reasons I discuss in my Overbroad Injunctions Against Speech article. I was also pleased to see the court rely on Catlett v. Teel, in which my students and I filed (with the help of local counsel Hyland Hunt) an amicus brief supporting free speech limits on these sorts of "anti-harassment" orders.