Repeated Sex Assault Accusations Can Lead to Washington "Antiharassment Protection Order" even Without Court Finding They're False

From Bobick v. Fernandes, decided yesterday by the Washington Court of Appeals Judge Janet Chung, joined by Judges Michael Diaz and Lori Smith; I'd love to hear what others think about this:

In December 2023, Bobick petitioned for an antiharassment protection order protecting him from Fernandes. Bobick alleged that Fernandes, whom Bobick did not know personally, had been making false claims online that Bobick sexually assaulted a woman named R.H. in 2015. He also alleged that Fernandes had been "harassing [him] online for more than one year."

Bobick specifically described two recent incidents. First, on November 27, 2023, Fernandes published a petition on the Change.org website targeting the Mountaineers, a Seattle-based climbing organization. According to Bobick, the petition demanded that the Mountaineers "change their policies in vetting volunteers and how they handle behavior complaints." Bobick provided a screenshot with text from the petition, which included the following statement: "Documents from a former member of the Mountaineers reported two sexual assaults in 2016. Stephen Bobick was accused of touching a woman inappropriately as she slept in a tent on a Mountaineers Climb." Second, Bobick alleged that Fernandes and R.H. collaborated on two public events to show a video that included a photograph of Bobick and R.H. with the caption, "Was sexually assaulted twice … by leaders in The Mountaineers I trusted." According to Bobick, Fernandes "rang a bell and yelled 'shame' repeatedly as the image … was on screen" and later published the video online.

The superior court issued the antiharassment protection order based on findings that (I combine here rulings from the superior court judge and a superior court commissioner):

"… Fernandes wants to make her accusations of sexual assault against … Bobick to the public as a warning to other people who may have any type of social relationship with [him] now or in the future." …

"[B]ased on a preponderance of the evidence … Bobick has offered sufficient evidence to support his request for a protection order." …

"… [T]here is a basis for a protection order in this matter … [a]nd … there is not an appropriate use of free speech by [Fernandes]." …

"[Bobick] supports [his] account of events with a sworn declaration that [Fernandes] made unproven accusations of sexual assault against [him] using his name and photograph for over 12 months. [Fernandes] agreed—or did not seriously dispute—[Bobick]'s description of her activities and time frame is accurate, and that [Bobick] has experienced substantial emotional distress…."

"[T]he actions of [Fernandes] constituted harassment … and [are] not protected free speech. [Fernandes]'s actions may, per her perspective, constitute[ ] a legitimate purpose—this Court disagrees…."

The appellate court affirmed:

Under [Washington law], a court "shall issue a[n antiharassment] protection order if it finds by a preponderance of the evidence … that the petitioner has been subjected to unlawful harassment by the respondent." "Unlawful harassment" means, as relevant here, "[a] knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, harasses, or is detrimental to such person, and that serves no legitimate or lawful purpose." "The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." … In determining whether a course of conduct serves any legitimate or lawful purpose, a court should consider whether

(i) Any current contact between the parties was initiated by the respondent only or was initiated by both parties;

(ii) The respondent has been given clear notice that all further contact with the petitioner is unwanted;

(iii) The respondent's course of conduct appears designed to alarm, annoy, or harass the petitioner;

(iv) The respondent is acting pursuant to any statutory authority including, but not limited to, acts which are reasonably necessary to:
(A) Protect property or liberty interests;
(B) Enforce the law; or
(C) Meet specific statutory duties or requirements;

([v]) The respondent's course of conduct has the purpose or effect of unreasonably interfering with the petitioner's privacy or the purpose or effect of creating an intimidating, hostile, or offensive living environment for the petitioner; or

(vi) Contact by the respondent with the petitioner … has been limited in any manner by any previous court order.

"Constitutionally protected activity is not included within the meaning of 'course of conduct.'" …

Fernandes argues that her activities that were the basis for the protection order were constitutionally protected, citing Catlett v. Teel (Wash. App. 2020)…. Here, unlike in Catlett, Fernandes did not merely publish public records about Bobick. Instead, … Fernandes accused Bobick of sexual assault and did so repeatedly in online forums for a period of more than 12 months…. Fernandes asserts that the burden falls on Bobick to show that Fernandes's statements were false …. [But precedents involving defamation] are inapposite and Fernandes cites no other authority for the proposition that Bobick was required to prove defamation to obtain an antiharassment protection order ….

The appellate court noted that:

Fernandes raises only a "backward looking" constitutional argument that her complained-of activities were protected speech and, thus, could not properly serve as a basis for the protection order. She does not argue that the restraints imposed going forward are unconstitutional. Accordingly, we do not consider this issue.

I don't think this is constitutional: Injunctions against libel, following a finding at a full trial that statements are indeed false and defamatory, are indeed permissible (see Anti-Libel Injunctions). But, given the First Amendment, such public accusations generally remain protected until there's proof that they are indeed false; and anti-harassment injunctions shouldn't be used against such accusations as a means to avoid the proof that defamation cases require (see Overbroad Injunctions).