The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Woman Repeatedly Badmouthed Ex-Lover, Ordered Not to Say Anything Online About Him, Lost Gun Rights
She had admitted that some (though not all) of the speech was false, but the injunction (entered in a restraining order case, not following a full defamation trial) extends to all speech, not just falsehoods: "Even speech otherwise protected by the First Amendment may be enjoined if it disturbs the petitioning party's peace."
Stafford v. Molano, decided Friday by California Court of Appeal Judge Brian Hoffstadt, joined by Judges Carl Moor and Dorothy Kim, upheld a restraining order (which included the provision that "Respondent shall not post about Petitioner online") that was apparently largely based on two sorts of speech:
- allegations of sexual assault, which defendant had apparently admitted were false, and
- allegations of nonconsensual taking of an intimate photograph, which I think defendant never recanted.
I don't think the decision is correct (see here for my general views on the matter)—especially since the injunction forbids even nondefamatory speech, and was expressly not based on a finding that all the speech was false. But this is indeed the way recent California court decisions have been going.
1. First, as to the apparently retracted allegations of sexual assault:
[Molano and Stafford] started a relationship at the end of 2021 while Molano was working for Stafford's construction business. Stafford is married to another woman. Until around Spring 2024, Molano and Stafford sustained an on-again-off-again affair that was, to the say the least, rocky. Molano sometimes threatened Stafford that she would destroy his life and his business if he left her.
Molano subsequently acted on her threats. At some point, Molano posted a photo of her bare back on the Google profile of Stafford's company with a comment "warning clients that [Stafford] was a predator." In October 2023, Molano posted two public comments on the Facebook profile of Stafford's wife (1) stating that Stafford had sexually assaulted Molano and suggesting that the wife go to the courthouse to see the criminal charges for herself, and (2) displaying a photo of bruises with an explanation that the bruises were "from your husband pinning me on the floor, pressuring me to have sex with him in his office." Molano reported the same accusations to the building manager for Stafford's business.
Molano then purported to retract her statements. She signed and had notarized a statement drafted by Stafford in which Molano denied the accusations she made to the building manager. And Molano made further posts on Stafford's wife's Facebook profile apologizing for her prior posts and explaining, "It didn't happen. I was mad. I was mad. It wasn't true." Stafford was neither arrested nor criminally charged based on any of Molano's earlier allegations….
Molano filed a petition for a domestic violence restraining order against Stafford based on allegations of sexual assault. The trial court denied the petition in May 2024. {Molano also pursued a small claims action against Stafford; she lost.} As the parties were leaving the courthouse following the court's ruling, Molano became "belligerent" toward Stafford. Later that day, she sent him a text message saying he is "going to pay big time." …
2. Now, as to the intimate photo:
In March 2024, Stafford took a photo of Molano "in a compromised position" to, in Stafford's own words, create "evidence" that "this is [a] cooperative" sexual relationship in case a "judge, a police officer, or anybody" later accuses him of sexual assault. The parties dispute whether Molano was aware Stafford took the photo…. In the weeks that followed [Molano's "going to pay big time" message to Stafford], Molano (and occasionally her friends) posted several negative reviews of Stafford's company on various websites:
- On June 9, 2024, Molano posted a Yelp review stating, "Predator. Manipulator. Physically and sexually abusive. And now trying to blackmail me with pics. Currently pressing charges. Do not let this creep in your home. Really sick person." A nearly identical one-star review was posted under a different name.
- On June 11, 2024, Molano posted a comment to a work-related photo on Stafford's Facebook page stating, "You're going to prison."
- On an unknown date, Molano posted another Google review stating "Invasion of privacy. Took naked pics without consent and is trying to blackmail. Sexually, physically abusive. Gaslighting. Manipulative. Narcissist. He has multiple sexual harassment cases and pending charges."
- On July 17, 2024, Molano posted another Yelp review stating: "If you look up [Stafford], the owner of the company, he took inappropriate pics of me without permission. That's invasion of privacy, sextortion, and against the law. You can look up the court case yourself. I submitted one of the inappropriate pics as evidence. Ladies, stay away from this creep." Yelp reported that 174 users read the review….
3. Stafford then got a domestic violence restraining order against Molano (emphasis added):
{After he filed the DVPA [Domestic Violence Prevention Act] petition and served [a separate defamation lawsuit, which is still pending], Molano posted another review stating, "Owner assaulted me and took inappropriate pics of me and is trying to file a defamation case when I literally have a video and recordings. He's just mad nobody will want to work with him, especially women. Don't let the fake ratings below fool you."} … [At the hearing], Molano freely admitted to authoring the posts, including some by aliases….
On September 26, 2024, the trial court issued a restraining order in favor of Stafford by enjoining Molano from making any public posts about Stafford and his business. The court found that Molano's conduct in "publicly posting allegations of sexual misconduct by [Stafford] on his business websites and wife's public Facebook page, is conduct that would destroy the mental or emotional calm of [Stafford]," and thus "disturb[ed] [Stafford's] peace," which is a basis for relief under the DPVA.
The [trial] court explained that its finding was independent of whether Stafford had sexually assaulted Molano. When Molano stridently announced that she was "going to go public with this regardless," the court extended the duration of the restraining order from one year to three years….
- And the Court of Appeal affirmed (emphasis added):
The DVPA empowers a trial court, upon "reasonable proof of … past … acts of abuse," to enjoin conduct that constitutes "abuse." As relevant here, "abuse" includes conduct that "disturb[s] the peace of the other party"—that is, conduct that "destroys the mental or emotional calm of the other party." Even speech otherwise protected by the First Amendment may be enjoined if it "disturb[s] the [petitioning party's] peace." (Bassi v. Bassi (Cal. App. 2024); In re Marriage of Evilsizor & Sweeney (Cal. App. 2015) ["prohibiting [husband] from disseminating the contents of [wife's] phones does not amount to a prohibited restraint of protected speech because [husband's] conduct constituted 'abuse' under the DVPA"]; Phillips v. Campbell (Cal. App. 2016) [restraining boyfriend from posting "photographs, videos, or information about [girlfriend] to any internet site" does not violate the First Amendment "'because [boyfriend's] ability to continue to engage in activity that has been determined after a hearing to constitute abuse [under the DVPA] is not the type of "speech" afforded constitutional protection'"]; In re Marriage of Nadkarni (Cal. App. 2009) [allegations that husband accessing and disclosing private e-mails disturbed wife's peace could constitute abuse to support temporary restraining order].) …
The same logic would apply not just to domestic violence restraining orders following a romantic breakup, but also to harassment restraining orders more broadly.
The firearms restriction wasn't challenged on appeal, but it was indeed automatically imposed, pursuant to California law, by the trial court.
