Court Reverses Personal Protective Order Issued Against "Distasteful and Provocative" Critic of Inkster City Attorney

Hustler Magazine v Falwell comes to small town politics.

From DWJ v. CLB, decided today by the Michigan Court of Appeals, in a nonprecedential opinion by Judges Anica Leticia, Christopher Murray & Sima Patel (as the public record below reveals, the plaintiff is Inkster City Attorney David W. Jones, and the defendant is Charles Blackwell):

Petitioner, the city attorney for the city of Inkster, obtained an ex parte personal protection order [PPO] against respondent, who moved to have it terminated on the ground that all the complained of conduct was constitutionally protected speech. The trial court denied the motion, holding that respondent's repeated conduct of showering petitioner with offensive commentary, while sometimes displaying critical caricatures of petitioner, both in-person and electronically, constituted stalking. The court also held that respondent's communications were not constitutionally protected expression because they violated petitioner's "right to be left alone." … We reverse….

Respondent is a private citizen who has often engaged petitioner, a city attorney, through e-mail and at public meetings, to express his opinion of petitioner's job performance through insulting utterances and displays of petitioner's face in unflattering and embarrassing settings. Petitioner testified that respondent first contacted him by e-mail at his work address in January 2020 after petitioner denied one of respondent's Freedom of Information Act (FOIA) requests. Thereafter, respondent filed many additional FOIA requests and lawsuits. According to respondent, petitioner "began a pattern of appearing at the public meetings and ridiculing myself, ridiculingmyclients, depictingme, alongwith elected officials in defamatoryand pornographic" ways.

Petitioner sought the protective order after respondent appeared at a city council meeting with a poster depicting petitioner's wife disparaging him to the mayor, while their heads were resting on pillows. Petitioner alleged that respondent then called him a "chump" when petitioner walked near him, and that he thought that respondent was armed because he had informed officials that he would exercise his permit to carry a concealed weapon during public meetings and then appeared with a small tote bag on his body….

We conclude, as a matter of law, that, in light of the obvious focus of the speech at issue on matters of public interest relating to local politics, and of petitioner's statutorily recognized status as a public officer, petitioner was a public figure for present purposes.

The trial court held that respondent's political commentary toward petitioner lost constitutional protection because it infringed on petitioner's "right to be left alone," explaining as follows:

When balancing the right of every person to be let alone with the balancing of the right of others to communicate, this Court finds that Petitioner's right to be left alone has been compromised. See Hill v Colorado (2000). The right to be let alone is that right which the PPO statute seeks to protect, by criminalizing stalking except where the conduct is constitutionally protected. Here, Respondent's direct targeting of Petitioner, … which Respondent acknowledged doing at the hearing held on August 4, 2022, lost its protected character.

In Hill, the United States Supreme Court considered a state statute that prohibited, within 100 feet of the entrance to any healthcare facility, "any person to 'knowingly approach' within eight feet of another person, without that person's consent, 'for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person ….'" The Court discussed the lack of constitutional protection for speech that "is so intrusive that the unwilling audience cannot avoid it," which follows from the "right to be let alone," which includes the "right to avoid unwelcome speech." In holding that the statute did not violate the First Amendment, the Court balanced the "substantial" right of "freedom to communication" with the rights "to be let alone" and to "passage without obstruction," and concluded that the statute applied to only "communications that interfere with" the latter rights. However, the Court stressed that the statute "simply establishes a minor place restriction," leaving protesters free "to educate unwilling listeners on any subject" as long as they "not approach within eight feet to do so."

The instant case is distinguishable from Hill, which considered a content-neutral state law, rather than overtly offensive speech. The parties have presented no binding cases that apply a "right to be left alone" to overcome constitutional protections in the context of a PPO. The Hill Court recognized that the "common-law 'right'" to be left alone "is more accurately characterized as an 'interest' that States can choose to protect in certain situations." The Court further clarified that "whether there is a 'right' to avoid unwelcome expression" was not at issue in that case, because the subject statute existed "not to protect a potential listener from hearing a particular message," but "to protect those who seek medical treatment from the potential physical and emotional harm suffered when an unwelcome individual delivers a message (whatever its content) by physically approaching an individual at close range." Additionally, in this case, the PPO largely targeted e-mail messages, which were not unavoidable insofar as they may be left unopened or possibly even blocked. We therefore conclude that, in prioritizing petitioner's interest in being let alone over respondent's constitutional right to communicate an opinion on public concerns to public officials, even in ways that are offensive, crude, or childish, the trial court applied the holding of Hill too broadly.

When online messages are posted "solely" to "harass a private victim in connection with a private matter," that activity may be enjoined by PPO, but when "the information relates to a public figure and an important public concern," a PPO may not be issued to restrict the speech. "[S]peech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Speech may not be prohibited because it is "offensive or disagreeable," or regulated on the basis of whether its message is favored or disapproved. "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." …

In this case, respondent's messages were to petitioner, and sometimes other public officials, commenting on petitioner's competence in the performance of his public duties. The caricatures, or cartoons, that respondent conveyed contained statements relating to only matters of public concern. Thus, the messages were protected commentary about public officials and public matters.

This Court has recognized the need to determine "whether postings involve a matter of public concern or whether the postings are a thinly veiled attempt to immunize a private harassment campaign as a matter of public concern." In this case, however, the messages at issue generally did not stray from communications through official channels concerning respondent's competence in, or fitness for, public office.

Conduct that is constitutionally protected may not be considered harassment, and thus may not be considered stalking [or harassment]…. "MCL 750.411s may not be employed to prevent speech relating to public figures on matters of public concern."

However, as stated, constitutional expressive rights are not absolute, and the categories of speech that are not protected include "defamation, fighting words, words inciting imminent lawless action, and true threats." "Fighting words include those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction …." …

We agree with petitioner that depicting petitioner's wife, apparently in bed with another man, to communicate that respondent thought that petitioner was performing poorly, was distasteful and provocative, as was calling him "chump" while the two were in proximity. However, the "rhetorical hyperbole and imaginative expression often found in satires, parodies, and cartoons," even when intended to be highly offensive to the target, should not be interpreted as factual recitations. Casual use of such epithets as "chump" in the context of public comments are typical of the exaggerated nature of "core political speech."The situation in which respondent insulted petitioner through invoking his wife was not "inherently likely to provoke violent reaction," considering that he communicated the message in a public political forum with law-enforcement officers present.

Further, the offending epithet and graphic display did not significantly depart from respondent's routine e-mailed political insults or provocations, and was not likely to be taken more seriously simply because respondent used petitioner's wife as a prop to convey his disparaging sentiments. We hold that respondent's poster and actions were tasteless, boorish, and offensive, but did not reach the level of being "inherently likely to provoke violent reaction" in an ordinary person.

In sum, because respondent's speech was constitutionally protected, the trial court erred as a matter of law in finding that it violated petitioner's right to be left alone, and thus abused its discretion by denying respondent's motion to terminate the PPO….

Many thanks to Philip L. Ellison (Outside Legal Counsel, PLLC), who was the local pro bono counsel on the amicus brief signed by Profs. Aaron Caplan, Stephen Lazarus, and Kevin O'Neill, as well as me, which supported Blackwell's position.