The Volokh Conspiracy
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Plaintiff Must "Reconcile Herself to the Fact That Litigation Is Often Accompanied by Public Attention and Scrutiny"
"Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them."
Owen v. Askew, decided today by Judge Ann Aiken (D. Ore.) rejected Plaintiff's Emergency Motion for Order to Show Cause (see also this supplement), seeking to hold defendant Boyce "in contempt for violation of the preliminary Injunction." That preliminary injunction, which was narrower than the TRO I had blogged about, "enjoin[ed] Defendants from engaging in harassment directed at Plaintiff or her business and particularly from seeking to have Plaintiff's online storefronts removed during the pendency of this action." From the court's opinion:
Plaintiff asserts that Ms. Boyce has commented on the ongoing lawsuit and that Plaintiff has been the target of hostile commentary on the Internet by third parties. The motion and its supporting exhibits do not show that Ms. Boyce has engaged in harassment of Plaintiff.
Nor does it show, beyond Plaintiff's speculation, that she has encouraged others to do so. The various Emergency Supplements include voluminous exhibits showing third parties expressing their support for Ms. Boyce or their antipathy to Plaintiff, but these comments do not constitute harassment and, even if they did, the Preliminary Injunction does not serve to enjoin individuals who are not before the Court.
Plaintiff complains that Ms. Boyce has "mocked" these proceedings and expressed her opinion that she will ultimately prevail, but it is not clear how Plaintiff believes either sentiment is a violation of the Preliminary Injunction. Outside of certain narrow and presently inapplicable circumstances, federal lawsuits are public proceedings and members of the public are free to comment on them. If Plaintiff wishes to proceed with this action, she must reconcile herself to the fact that litigation is often accompanied by public attention and scrutiny.
Plaintiff's filings point to various statements made about the case by third parties, some of which are just harsh criticism of plaintiffs, but some of which might be seen as threats (e.g., "White bitches always steal ima kill you"). It also points to what seems to be a call for violence against the judge ("The judge who put a gagging order on the true creators of the magnetic hair clip, needs to be taken out! It's because of racist white people in positions of authority, why racism still goes unjecked today. The judge needs to be eradicated, eliminated, taken out!!"). But the judge's point is that Boyce can't be held in contempt based on those third party statements, even if they stemmed from Boyce's criticisms of plaintiff and of the earlier TRO opinion.
The general sentiments in the opinion are right, I think, though this still leaves the question of what constitutes forbidden "harassment." The short opinion doesn't tell us. Neither does the preliminary injunction. And, based on decades of studying harassment laws of various sorts, I don't think there's a well-established legal definition of the word "harassment."
Lay dictionary definitions (e.g., "to vex, trouble, or annoy continually or chronically") are generally too vague to be useful. There are more precise definitions in various laws, but they vary sharply from law to law.
Some statutes define harassment to include only threats. Some define it as unwanted speech to a person. Some define it as including at least certain kinds of unwanted speech about a person that is sufficiently distressing. Some define it to cover speech that creates a "hostile, abusive, or offensive environment" in a workplace, educational institution, place of public accommodation, or the like based on race, religion, sex, sexual orientation, and the like. Some expressly exclude speech or conduct that has a "legitimate purpose," though generally without defining which purposes count. I therefore worry about these sorts of injunctions that ban "harassment," without any real definition of the term.
