The Volokh Conspiracy
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Court Upholds Anti-Stalking Injunction Stemming from Public Pressure Campaign Over Allegedly Wrongly Withheld Cat
From the N.H. Supreme Court Thursday in D.V. v. R.G. (see also the newspaper coverage of the initial controversy; court records reflect that the parties are Valente v. Garcia):
The plaintiff owns a business near an apartment building in Manchester where the defendant lives. In June 2024, the defendant let her cat outside. The cat was apparently sick and dying. On the same day, the plaintiff's daughter found a cat on the plaintiff's property that appeared to be in poor health. The plaintiff took the cat in and spent several thousand dollars on veterinary care. [Note that defendant argues, in her appellate brief that the cat was "an indoor-outdoor cat who would wander the neighborhood"; she had taken the cat to the vet, who told her that the cat "may die in the upcoming weeks"; she brought the cat "home so he would live his last days with his family"; and she let the cat continue his daily routine, including his outside time, "because at the time, he was not in distress." -EV]
On Friday, June 28, the plaintiff learned that the defendant had lost a cat and went to the defendant's apartment to inquire whether the cat belonged to the defendant. Although the parties dispute what the plaintiff said or promised during that meeting, there is no dispute that, by the end of the day, the plaintiff refused to return the cat to the defendant. According to the plaintiff, she was concerned that, if the cat were the defendant's cat, the defendant had abused or neglected it. The plaintiff communicated to the defendant that she planned to consult with Manchester Animal Control when it opened the following Monday morning.
By Saturday, the defendant had made claims on social media that the plaintiff and her daughter had stolen her cat. [More facts below. -EV] The defendant also organized a protest outside the plaintiff's business. [Again, more facts below. -EV] … On Tuesday, when the plaintiff's daughter brought the cat, at the suggestion of the police, to the animal shelter, the cat had died. The defendant then claimed on social media that the plaintiff had killed the cat….
New Hampshire law allows courts to issue anti-stalking orders of protection, aimed at stopping defendants from
- "[p]urposely, knowingly, or recklessly engag[ing] in a course of conduct"—defined to include at least two acts of communication—
- "targeted at a specific person"
- "which would cause a reasonable person to fear" for the person's or family members' safety
- when such fear has indeed been caused.
Plaintiff sought such an order, and the trial court issued it, banning defendant from "further acts of stalking"—which presumably forbade the defendant from repeating the behavior that she engaged in—and specifically banning defendant "from posting about Plaintiff and her business on any public social media accounts." The trial court reasoned (see pp. 22-23 of this PDF):
The Defendant recklessly engaged in a course of conduct targeted at Plaintiff when, on June 29, 2024 Defendant posted. "Your karma is going to come at you ten fold. Give him back like you said you would." On June 30, 2024, Defendant posted on public social media accounts the name of Plaintiff, her daughter, and the name of Plaintiff's business, along with information Defendant could reasonably foresee would, and did, inflame public outrage directed at Plaintiff. When individuals posted threatening statements in response to Defendant's original post. statements such as "Shawty take ya gun n go get ya fucking cat who tf these ppl think they are" and "Go take her daughter[.]"
Defendant expressed approval of these posts suggesting violence against Plaintiff and her daughter. Defendant's approval is evidenced by the Defendant's social media profile picture and a red heart on each post. Defendant weaponized public social media accounts against Plaintiff, which caused Plaintiff to reasonably fear for her and her family member's safety.
Defendant did this by repeatedly making posts with no legitimate purpose other than to inflame the public against Plaintiff and her business. "For a Defendant New Hampshire's stalking statute exempts only constitutionally protected conduct and conduct 'that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person. RSA 633:3-a, II(a).['] Pursuant to RSA 633:3-a, IV, the defendant has the burden to show that his conduct was necessary to accomplish a legitimate purpose." Miller v. Blackden, 154 N.H. 448, 452 {2006). Defendant failed to satisfy her burden of proof to show that her conduct was necessary to accomplish a legitimate purpose.
Defendant's posts repeatedly, with the knowledge of Defendant, elicited statements of violence directed at Plaintiff such as, "I hope your shop burns down you racist ass bitch" and "Should've been your worthless carcass they found in the streets, Debbie. Fucking, disgusting, worthless, racist cat killer". "You should find a rope and hang yourself with it already". and "Disgusting ugly cunt karma is coming for you. And the fucking law. You evil bitch. I hope you die screaming and your little cunt Sabrina too." With full knowledge of the outrage incited by Defendant's posts, in July of 2024, Defendant posted multiple pictures of Plaintiff on public social media accounts.
By posting Plaintiff's photograph, full name, and the name of her business, Defendant knew, or should have known, her conduct would direct the threatening and hostile behaviors directly at Plaintiff, Plaintiff's daughter, and Plaintiff's business. Moreover, Defendant conducted a protest outside Plaintiffs business at which one protester made the statement, "Come out bitch, come out". Defendant failed to prove the protest outside of Plaintiffs business served any legitimate purpose.
"While a content-based restriction is presumptively unconstitutional, it has also long been 'well understood that the right of free speech is not absolute at all times and under all circumstances.' Chaplinsky v. New Hampshire (1942). There are certain 'utterances [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that an benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' Chaplinsky. Accordingly, there are certain categories of speech 'the prevention and punishment of which have never been thought to raise any Constitutional problem.' Those categories of speech include 'advocacy intended, and likely to, incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent.' United States v. Alvarez (2012) (pluralitv opinion)[.]" S.D. v. N.B. (N.H. 2023).
While Defendant did not directly contact Plaintiff in all posts, "to construe the statute as not encompassing the Defendant's conduct—writing a message addressing the victim and posting it in a public forum but not personally conveying the message to the victim—would add limiting language that the Legislature did not include." State v. Craig (N.H. 2015). While "contact" requires more than merely creating a message, the language chosen by the Legislature requires only that a person act 'either directly or indirectly' to communicate with another." Defendant's posts tagged Plaintiff's business by name, and included Plaintiff's name and picture. The evidence submitted shows Defendant's behaviors were intended to target Plaintiff, whether directly or indirectly."
The New Hampshire Supreme Court agreed, reasoning:
[1. The statute] does not require proof that the defendant personally conveyed threats of violence to or concerning the plaintiff or a member of the plaintiff's immediate family, or expressly encouraged others to do so…. [It is enough that] the trial court found that she recklessly engaged in a course of conduct, targeted at the plaintiff, that caused the plaintiff reasonably to fear for her own safety and the safety of her daughter.
The defendant has presented no developed legal argument challenging the trial court's findings that she acted recklessly, that her actions constituted a "course of conduct" targeted at the plaintiff, or that her actions served no legitimate purpose. Nor has the defendant challenged the trial court's finding that her actions foreseeably inflamed public outrage toward the plaintiff….
[2.] The trial court determined that the defendant did not engage in constitutionally protected speech, and other than asserting that she has a First Amendment right to peacefully protest, the defendant presents no developed legal argument why her conduct, under the facts of this case, was constitutionally protected. Therefore, we decline to address it….
It looks like the defendant's counsel here might not have argued the case very well, by not adequately raising the First Amendment defense; here's the entirety of the section called "The Trial Court's Protective Order Violates the Defendant's Right to Free Speech Under the First Amendment to the Federal Constitution" from defendant's brief (see p. 14 of this PDF):
The Defendant testified that in her past she had participated in protests and understood that she must do so peacefully and must not intrude beyond public spaces.
The First Amendment to the United States Constitution prohibits the passage of laws "abridging the freedom of speech." U.S. CONST. amend I and applies to the states through the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin, 303 U.S. 444, 450 (1938). Orders of a court punishing a person for peacefully protesting abridges that person's freedom of speech and should not have been used as grounds for the issuance of the Stalking Final Order of Protection The United States Supreme Court has stated that "above all else, the First Amendment means that government has no power to restrict expression because of its messages, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
The Trial Judge's narrative in the stalking order discounts the Defendant's right to protest whereas the Trial Judge's analysis is contrary to the testimony of Officer Coughlin who responded to the scene and testified at the hearings on Day 1 and the testimony of the Defendant. The Trial Judge's findings improperly bolsters the insufficient evidence presented by the Plaintiff and her daughter at the hearings. In summary, the findings contained in the Trial Judge's narrative concerning the protest contradict the testimony at trial and is unsupported by the record.
Still, setting aside the weakness of the briefing in this particular case, query how a court should decide when such public pressure campaigns—whether involving in-person picketing, other shaming within the community, or purely Internet condemnation—serve a "legitimate purpose."
The issue of course comes up often. Consider, for instance, the controversy stemming from the publication of lists of names and photos of Harvard students who were allegedly linked to pro-Hamas-attack statements. Or, going back some years, consider the identification of the dentist who killed Cecil the lion, which apparently led to threats against the dentist. Or consider the various viral videos that show someone supposedly saying or doing something racist or sexist or otherwise sharply condemned by many people could have the same effect, and that lead to insults of and sometimes threats against the person being depicted.
Or consider what I think is the leading Supreme Court case on the subject, NAACP v. Claiborne Hardware Co. (1982), which stems from a 1966-70 black community boycott of white-owned stores in Claiborne County, Mississippi. The boycott organizers demanded that black customers stop shopping at those stores, and stationed "store watchers" outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud at NAACP meetings at a local black church, and printed and distributed to other black residents. "As stated by the [trial judge], those persons 'were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.'"
Some of the noncomplying shoppers were also physically attacked for refusing to go along with the boycott:
The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged. None of these four victims, however, ceased trading with white merchants.
The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators. In April 1966, a black couple named Cox asked for a police escort to go into a white-owned dry cleaner and, a week later, shots were fired into their home. In another incident, an NAACP member took a bottle of whiskey from a black man who had purchased it in a white-owned store. The third incident involved a fight between a commercial fisherman who did not observe the boycott and four men who "grabbed me and beat me up and took a gun off me." In a fourth incident, described only in hearsay testimony, a group of young blacks apparently pulled down the overalls of an elderly brick mason known as "Preacher White" and spanked him for not observing the boycott….
Various businesses sued, claiming that the boycott tortiously interfered with the businesses' relationships with their customers, including by frightening away some customers. (That is generally a legally viable sort of claim, setting aside the First Amendment objections.)
Yet the Court held that the First Amendment protected publishing the fact that the noncomplying shoppers were not complying with the boycott—despite the attempt to publicly shame people who were exercising their legal rights to shop at white-owned stores, the natural tendency of such behavior to coerce some people to go along with the boycott, and the eminently foreseeable consequence that there was some violence. Though "[p]etitioners admittedly sought to persuade others to join the boycott through social pressure and the 'threat' of social ostracism," the Court held, "[s]peech does not lose its protected character … simply because it may embarrass others or coerce them into action." And it doesn't lose its protected character even when a few of the listeners foreseeably act violently:
Respondents also argue that liability may be imposed on individuals who were … "store watchers" …. There is nothing unlawful in standing outside a store and recording names….
Only those people who themselves "engaged in violence or threats of violence" may be held liable for those incidents, the Court concluded; simply publicizing the noncomplying customers' names couldn't lead to liability.
Nor do I think that the result would have been different if the people's photos were included alongside their names. In a rural county that had 7500 black residents at the time (I looked this up in the Census data), identifying a person by name would have likely made it pretty clear to fellow residents who it was. And to the extent that the name was ambiguous, and the photo helped show which John Smith was being discussed, it would likely have been better and fairer if the photos could have been included, to avoid people ascribing one person's behavior to another.
I also don't think that the legal result should be affected by whether the information is posted on the Internet (which, in the Harvard pro-Hamas-attack speech example, might have distinguished the names being posted online from the names being displayed on a truck that was apparently being driven around Cambridge). It's true that Internet speech is generally visible by more people, so if even 0.01% of all readers act illegally based on it, that could still be a large number. But on the other hand, the speech in Claiborne Hardware was more likely to reach people's neighbors, who are much more capable of retaliating with real-world violence (as opposed to just nasty e-mails or threats) than are Internet users thousands of miles away.
To be sure, a dispute about a cat (even with an alleged "racist remark to the cat's owner") seems to be of a much lesser magnitude than one about a broad boycott of white-owned stores, or even about alleged pro-Hamas-attack sentiment among Harvard students. But I wonder whether the law can draw a line here, consistently with the First Amendment.
In any event, the New Hampshire case suggests that some judges are indeed open to trying to suppress public pressure campaigns that lead some listeners to threaten their targets (though, again, it's hard to know for sure how broadly they would apply that reasoning). I'd love to hear what our readers think about this sort of order.
Disclosure: I was accused last year by a self-represented frequent litigant of causing people to make threatening phone calls to her, when I published a long law review article that in a few passages identified her as the plaintiff in certain pseudonymous lawsuits. The litigant sought a "harassment restraining order" requiring me to remove her name from the online versions of the published article. Unsurprisingly, the Los Angeles Superior Court dismissed her pseudonymous case against me, and ordered that she be depseudonymized, though she is currently appealing those decisions. My views described above long predate that lawsuit.
