The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
CNN v. SEB, decided yesterday by the Michigan Court of Appeals (in an opinion by Chief Judge Elizabeth Gleicher, joined by Judges Jane Markey and Michelle Rick, stemmed from an ongoing pattern of disputes between two neighboring families about the use of a shared driveway. "Battles raged on issues ranging from installing chicken wire fences to hanging surveillance cameras from trees, sometimes leading to screaming matches in the street." Police were often called, and both sides often sought PPOs (personal protection orders against each other).
The incident triggering the current filing arose on August 8, 2021, when MN [CNN's husband] parked his car in the driveway directly in front of his garage and began vacuuming the inside, with his back turned to SEB's property. From her porch, CNN observed SEB approach MN to take cell phone pictures of him. CNN walked over and stood between SEB and MN. She repeatedly told SEB to go away. SEB's sister, RJ, and EB [SEB's husband] joined the gathering. Another neighbor, LM, heard the argument and drew near to assist CNN and MN.
When LM came outside, SEB shouted, "[H]ere come your masser (sic)." (LM is white; CNN, SEB and their husbands are African American.) CNN and LM reported that SEB and EB repeated the comment approximately four times. LM returned to his house. CNN told SEB that her comment was "foul." SEB then made a motion "like she was trying to … come at" CNN. RJ grabbed SEB's arm to stop her and SEB tried to pull loose. CNN asked SEB, "[W]hat are you doing? What is that you want[?] You want to come at me[?]" CNN and MN then turned away and returned to their homes. [Further details, which the court concluded didn't form a basis for the lower court's PPO, omitted.—ed.] …
The [trial] court characterized SEB's statement—"here comes your master"—as "racially charged" and "hate speech." "That is harassment, possibly of the worst kind, in this day and age, in this time of insensitivity to everyone that you can have that in your heart to utter in the heat of the moment, is very unfortunate[ ]." The court found it be "blatant harassment that rises to the level of a definition under the statute. It is not protected speech and it doesn't matter where you are standing." …
At the close of the hearing, the court entered the PPO prohibiting SEB from "sending mail or other communications" to CNN, "contacting [CNN] by telephone," "placing an object on or delivering an object to" CNN's property, "threatening to kill or physically injure" CNN, "speaking to [CNN] in any place or location," and photographing CNN or her vehicle….
The Court of Appeals reversed:
[T]he court erred in granting a PPO based solely on SEB's statement, "[H]ere come your masser (sic)." … Imposing a PPO based on SEB's single, nonthreatening comment violated the First Amendment….
"The First Amendment protects the speech and association rights of an individual … no matter how different, unpopular or morally repugnant society may find his activities." "There is no categorical 'harassment exception' to the First Amendment's free speech clause." …
"The First Amendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." … "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." By stating, "[H]ere come your masser (sic)," SEB did not threaten CNN, and the evidence does not support that she intended her words to generate violence. Rather, SEB boorishly expressed anger about a white neighbor interfering in her disagreement with CNN. Her words were racially charged, puerile, and ugly, but also were protected….
A bit of backstory, from the trial court:
There was testimony from [SEB] regarding certain things that she had said including that she admitting [sic] that she had called [CNN] wicked before. That she had also written words, I think, even in one of the cases regarding her status and with reference to her being racist or acting in a racial manner, … favoring lighter skinned African American versus darker skinned African American.
Thanks to Michael F. Smith for the pointer.